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Migration Amendment (Strengthening Biometrics Integrity) Bill 2015

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2013-2014-2015

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

MIGRATION AMENDMENT (STRENGTHENING BIOMETRICS INTEGRITY) BILL 2015

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration and Border Protection,

the Hon. Peter Dutton MP)



Migration Amendment (Strengthening Biometrics Integrity) Bill 2015

 

OUTLINE

The Migration Amendment (Strengthening Biometrics Integrity) Bill 2015 (the Bill) amends the Migration Act 1958 (the Migration Act) to implement a number of reforms which will consolidate and simplify the provisions relating to the collection of personal identifiers, and will address gaps and shortcomings that exist in the current legislative framework.

A biometric (termed ‘personal identifier’ in the Act), is a unique identifier that is based on individual physical characteristics, such as facial image, fingerprints and iris, which can be digitised into a biometric template for automated storage and checking.  Once ‘anchored’ to a person’s biographic information, such as name, nationality and date of birth, a biometric adds significantly to verifying a person is who they claim to be, and to link an individual to security, law enforcement, and immigration information.

The Department of Immigration and Border Protection’s (the department) biometric programme has been progressively expanded over time, commencing in 2006 with collecting facial images and fingerprints of illegal foreign fishers, through to 2010, when the department commenced collecting facial images and fingerprints from offshore visa applicants in certain higher risk locations and onshore protection claimants, to 2012, when collecting facial images and fingerprints from non-citizens refused entry at Australia’s international airports commenced.  While the current legislative framework has effectively supported Australia’s border protection efforts since it was introduced more than 10 years ago, it now needs to be updated to provide officers with the tools to more effectively meet current threats and to keep pace with advances in biometric technology.

The success to date of the department’s biometric programme demonstrates the value of personal identifiers in protecting Australia’s border and strengthening the integrity of Australia’s migration programme. Personal identifiers are essential to detect identity fraud and conduct appropriate security, law enforcement and immigration checks prior to visa grant, at touch-points during travel to Australia, post-arrival in the Australian community, and for any subsequent visas to remain in Australia.  Personal identifiers are more accurate than document based checks of biographic details, such as name, date of birth and nationality.

Checks of personal identifiers against existing immigration data holdings, and the data holdings of Australian law enforcement agencies and Five Country Conference partner countries have revealed undisclosed adverse immigration and criminal history information of non-citizens, and discrepancies in the biographic information provided by non-citizens.

The progressive expansion of the department’s biometric programme has resulted in some non-citizens providing personal identifiers, but not others, depending on the timing of their visa application or arrival in Australia. As a result, higher integrity biometric-based identity, security, law enforcement and immigration history checks have been conducted on only some non-citizens.

Recent border and terrorism-related events in Australia and worldwide illustrate the need for measures to strengthen community protection outcomes. In addition, as the department reduces the degree of physical contact with applicants for visas, it is increasingly important that identity and other checks are conducted against biometric data holdings to detect individuals of concern.  In particular, the capability to conduct identity checks against existing data holdings, will further contribute to the protection of children who have been, or who are at risk of, being trafficked.  

The Migration Act contains eight different provisions that authorise the collection of personal identifiers.  These provisions create a complicated legislative framework for when particular types of personal identifiers can be collected, dependent on the circumstance in which the personal identifier is required, and what power is being exercised.  

In addition to simplifying the provisions relating to the collection of personal identifiers, the amendments to the Migration Act to be made by this Bill will expand existing personal identifier collection capability, and provide for new capabilities, which will increase the integrity of identity, security, law enforcement and immigration checks of people seeking to enter and depart Australia, and of non-citizens who remain in Australia.  These amendments will strengthen Australia’s borders and increase the integrity of the migration programme.

Specifically, the amendments to the Migration Act:

·          streamline seven existing personal identifier collection powers into a broad, discretionary power to collect one or more personal identifiers from non-citizens, and citizens at the border, for the purposes of the Migration Act and the Migration Regulations 1994 (the Migration Regulations);

·          provide flexibility on the types of personal identifiers (as defined in the existing legislation) that may be required, the circumstances in which they may be collected, and the places where they may be collected;

·          enable personal identifiers to be provided either by way of an identification test, or by another way specified by the Minister or officer (such as a live scan of fingerprints on a handheld device);

·          enable personal identifiers to be required by the Minister or an officer, either orally, in writing, or through an automated system, and allow for existing deemed receipt provisions in the Migration Act to apply in relation to requests in writing;

·          enable personal identifiers to be collected from minors and incapable persons for the purposes of the Migration Act and Migration Regulations under the new broad power without the need to obtain the consent, or require the presence of a parent, guardian or independent person during the collection of personal identifiers; and

·          omit provisions which are unused and no longer necessary.

The Bill also contains transitional provisions in respect of the above amendments along with consequential and saving provisions.

 

financial impact statement

 

The financial impact of the Bill is low. Any costs will be met from within existing resources of the Department of Immigration and Border Protection.

 



 

Migration amendment (STRENGTHENING BIOMETRICS INTEGRITY) B ILL 2015

 

notes on individual clauses

 

Clause 1          Short title

1.               Clause 1 provides that this Act may be cited as the Migration Amendment (Strengthening Biometrics Integrity) Act 2015 .

Clause 2          Commencement

 

2.               Subclause 2(1) provides that each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table.  Any other statement in column 2 has effect according to its terms.

3.               Table item 1 provides that sections 1 to 3, and anything in this Act not elsewhere covered by this table, commence on the day this Act receives the Royal Assent.

4.               Table item 2 provides that Schedule 1 commences on a single day to be fixed by Proclamation.  However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 

5.               A note explains that this table relates only to the provisions of this Act as originally enacted.  It will not be amended to deal with any later amendments of this Act.

6.               Subclause 2(2) provides that any information in column 3 of the table is not part of this Act.  Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

Clause 3          Schedules

7.               This clause provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.



 

 

SCHEDULE 1 - PERSONAL IDENTIFIERS

 

Part 1 - Amendments

 

Migration Act 1958

 

Item 1             Subsection 4(3)

 

8.               This item repeals existing subsection 4(3) and substitutes a new subsection 4(3) in Part 1 of the Migration Act.

9.               Section 4 of the Migration Act sets out the object of the Migration Act.  Current subsection 4(3) provides that, to advance its object, the Migration Act requires a person, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.

10.           New subsection 4(3) provides that to advance its object, this Act provides for non-citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations.

11.           The purpose of new subsection 4(3) is to clarify that to advance its object, the Migration Act provides for non-citizens and citizens to be required to provide personal identifiers in a broad range of circumstances for the purposes of the Migration Act or the Migration Regulations.  This includes requiring a person, whether a citizen or non-citizen, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.  It also includes requiring a non-citizen to provide personal identifiers for the purposes of subsection 5A(3), as amended by item 3 of Schedule 1 to this Bill.  The requirement for citizens to provide personal identifiers is limited by subsection 257A(3) inserted by item 34 of Schedule 1 to this bill.

Item 2            Subsection 5(4A)

12.           This item repeals subsection 5(4A) in Part 1 of the Migration Act. 

13.           Current subsection 5(4A) provides that a reference to a non-citizen in the definition of independent person (in subsection 5(1)), in sections 258B to 258G or in Division 13AB of Part 2 of the Migration Act, includes a reference to a person whom an officer, in the course of exercising or considering the exercise of his or her powers under section 188, reasonably suspects is a non-citizen.

14.           Current subsection 5(4A) is no longer necessary as a consequence of amendments contained in items 49 and 52 of Schedule 1 to this Bill, which will remove references to non-citizen from sections 261AL and 261AM of the Migration Act.  The only reference to non-citizens in sections 258 to 258G, is contained in subparagraph 258B(1)(a)(i) where it is clear that the subparagraph applies to a person whom an officer reasonably suspects is a non-citizen.  Further, subparagraph 258(1)(a)(i) is being repealed by item 38 of Schedule 1 to the Bill.

15.           The reference to non-citizens will be retained in the definition of independent person which will now only be relevant when collecting personal identifiers from immigration detainees where it is known that the person is an unlawful non-citizen.   As a result, current subsection 5(4A) is unnecessary and is to be repealed.     

Item 3             After paragraph 5A(3)(f)                              

16.           This item inserts new paragraph 5A(3)(fa) after paragraph 5A(3)(f) in Part 1 of the Migration Act.

17.           New paragraph 5A(3)(fa) will add that a purpose of obtaining a personal identifier is to assist in determining whether a person is an unlawful non-citizen or a lawful non-citizen.  

18.           This amendment supports item 34 of Schedule 1 to the Bill, which inserts new section 257A into Division 13 of Part 2 of the Migration Act. New section 257A provides a broad power to require, in writing or orally, a person to provide one or more personal identifiers for the purposes of the Migration Act or the Migration Regulations, including (but not limited to) for those purposes listed in subsection 5A(3).

19.           New paragraph 5A(3)(fa) clarifies that one of those purposes is to establish the status of a person, that is, whether they are a lawful or unlawful non-citizen.

Item 4            Section 5B

 

20.           This item omits the words “sections 40, 46, 166, 170, 175, 188 and 192” and substitutes the words “section 257A” in section 5B in Part 1 of the Migration Act.

21.           Current section 5B outlines when a personal identifier is taken not to have been provided. It refers to personal identifiers provided for the purposes of sections 40, 46, 166, 170, 175, 188, 192.

22.           This item reflects that new section 257A, which is inserted by item 34 of Schedule 1 to the Bill, contains the new broad power to require personal identifiers from a person, including in the circumstances currently in section 40, 46, 166, 170, 175, 188 and 192 of the Migration Act.

23.           This is a consequential amendment to item 34 of Schedule 1 to the Bill which inserts new section 257A into Division 13 of Part 2 of the Migration Act.

Item 5            Paragraph 5B(b)

24.           This item inserts “the Minister,” before “an authorised” in paragraph 5B(b) in Part 1 of the Migration Act.

25.           Current paragraph 5B(b) provides that one of the circumstances in which a person is taken not to have provided a personal identifier, for the purposes of sections 40, 46, 166, 170, 175, 188 and 192, is if an authorised officer or an officer is not satisfied:

·          about the integrity of the personal identifier that is provided; or

 

·          about the procedure followed to obtain the personal identifier.

 

26.               This item extends paragraph 5B(b) to include circumstances where the Minister, as well as an authorised officer or an officer, is not satisfied of the above.

 

27.               This is a consequential amendment to item 34 of Schedule 1 to the Bill, which inserts new section 257A into Division 13 of Part 2 of the Migration Act. New section 257A provides that the Minister or an officer may, in writing or orally, require a person to provide one or more personal identifiers for the purposes of the Migration Act or the Migration Regulations. 

 

28.               This amendment clarifies that a personal identifier is also not taken to have been provided when the Minister is not satisfied about the integrity or quality of, or the procedure followed to obtain, the personal identifier.

Item 6             Subparagraph 5B(b)(i)

29.               This item inserts “or quality” after “integrity” in subparagraph 5B(b)(i) in Part 1 of the Migration Act.

 

30.               Current subparagraph 5B(b)(i) provides that a personal identifier is taken not to have been provided when an authorised officer or an officer is not satisfied about the integrity of the personal identifier that is provided. 

 

31.               New subparagraph 5B(b)(i) will provide that a personal identifier is taken not to have been provided when an authorised officer or an officer is not satisfied about the integrity or quality of the personal identifier that is provided.

 

32.               The purpose of this item is to clarify that if a personal identifier is of unsatisfactory quality, it is also taken not to have been provided for the purposes of new section 257A which is inserted by item 34 of Schedule 1 to the Bill.

Item 7             Subparagraph 5B(b)(ii)

33.           This item omits “identifier; or” and substitutes “identifier” in subparagraph 5B(b)(ii) in Part 1 of the Migration Act.

34.           This is a consequential amendment to item 8 which repeals paragraph 5B(c) of the Migration Act.

Item 8             Paragraph 5B(c) 

 

35.               This item repeals paragraph 5B(c) in Part 1 of the Migration Act.

36.               Current paragraph 5B(c) provides that one of the circumstances in which a person is taken not to have provided a personal identifier, for the purposes of sections 40, 46, 166, 170, 175, 188 and 192, is if, in a case to which subsection 40(5), 46(2C), 166(8), 170(5), 175(5), 188(7) or 192(2C) applies, the quality of the personal identifier that is provided does not satisfy an officer who uses the personal identifier for the purpose of making a decision under this Act of the regulations.

37.               This is a consequential amendment to items 9, 12, 16, 21, 26, 28 and 31 which repeal, among other provisions, subsections 40(5), 46(2C), 166(8), 170(5), 175(5), 188(7) and 192(2C) of the Migration Act.

 

Item 9             Subsections 40(3) to (5)

 

38.           This item repeals subsections 40(3) to (5) and substitutes new subsection 40(3) in Division 3 of Part 2 of the Migration Act.

39.          Current subsection 40(3) provides that without limiting subsection 40(1), the circumstances in which visas or visas of a specified class may be granted may be, or may include, that the person has complied with any requirement of an officer to provide one or more personal identifiers in relation to the application of the visa, if:

 

·          prescribed circumstances exist; and

 

·          the Minister has not waived the operation of this subsection in relation to granting the visa to the person.

40.           New subsection 40(3) simplifies current subsection 40(3) and reflects that any requirement for personal identifiers will be made under new section 257A to be inserted by item 34 of Schedule 1 to the Bill.  New subsection 40(3) provides that without limiting subsection 40(1), the circumstances in which visas or visas of a specified class may be granted may be, or may include, that a visa applicant has complied with any requirement to provide one or more personal identifiers made under new section 257A.

41.           Current subsection 40(3A) limits the types of personal identifiers which an officer can require a person to provide for the purposes of subsection 40(3). It allows for a broad range of types of personal identifiers to be required of persons applying for a temporary safe haven visa or any other visa of a class that the Migration Regulations designate as a class of humanitarian visas, and a still broader range of types of personal identifiers which may be required of persons applying for a protection visa.

42.           The repeal of subsection 40(3A) reflects the policy intention that there should not be limitations on the type of personal identifiers which can be required from all visa applicants.  The intention is that if a requirement is made to a person to provide a personal identifier under the new section 257A, any type of personal identifier,  as defined in subsection 5A(1) of the Migration Act, may be required to be provided.

43.           Current subsection 40(3B) states that officers using their powers under current subsection 40(3) must not contravene regulations made for the purpose of paragraph 40(3C)(b).  The repeal of subsection 40(3B) is consequential to the repeal of subsection 40(3C).

44.           Current subsection 40(3C) provides that the regulations may prescribe other types of personal identifiers or may limit the requirement of personal identifiers under subsection 40(3A).   The repeal of subsection 40(3C) is consequential to the repeal of subsection 40(3A). 

45.           Current subsection 40(4) provides that a person is not taken to have complied with a requirement under subsection 40(3) unless the one or more personal identifiers have been provided to an authorised officer by way of one or more identification tests carried out by an authorised officer.  The repeal of subsection 40(4) is consequential to the insertion of new subsections 257A(1) and 257A(5) by item 34 of Schedule 1 to the Bill, which together create the obligation that the personal identifiers must be:

·          provided by way of one or more identification tests carried out by an authorised officer or an authorised system; or

 

·          if another way is specified by the Minister or officer— provided in that specified way.

46.           Current subsection 40(5) limits the application of current subsection 40(4).  As a consequence of the repeal of subsection 40(4), subsection 40(5) is to be repealed.

Item 10           Paragraph 46(2A)(a)

 

47.           This item repeals paragraph 46(2A)(a) in Division 3 of Part 2 of the Migration Act.

48.           Current subsection 46(2A) provides for when an application for a visa is invalid and paragraph 46(2A)(a) allows circumstances to be prescribed in the Migration Regulations for that purpose.

49.           The purpose of this item, together with item 11, and item 34 which inserts new section 257A, is to make clear that an application for a visa is invalid if:

·          the applicant has been required to provide one or more personal identifiers under new section 257A for the purposes of new subsection 46(2A) amended by item 11 below; and

 

·          the Minister has not waived the operation of new subsection 46(2A); and

 

·          the applicant has not complied with the requirement.

Item 11           Paragraph 46(2A)(ab)

 

50.           This item repeals paragraph 46(2A)(ab) and substitutes new paragraph 46(2A)(ab) in Division 3 of Part 2 of the Migration Act.  

51.           Current paragraph 46(2A)(ab) provides that one of the requirements that must be met for subsection 46(2A) to operate to render a visa application invalid is that the applicant has been required by an officer to provide one or more personal identifiers in relation to the application.

52.           New paragraph 46(2A)(ab) provides that one of the requirements that must be met for subsection 46(2A) to operate to render a visa application invalid is the applicant has been required to provide one or more personal identifiers under section 257A for the purposes of this subsection. 

53.           The effect of this item is that an application is invalid if:

·          the applicant has been required to provide one or more personal identifiers under section 257A for the purposes of subsection 46(2A); and

·          the Minister has not waived the operation of subsection 46(2A) in relation to the application for the visa; and

·          the applicant has not complied with the requirement.

54.               This item is consequential to the insertion of the new broad power to collect personal identifiers inserted by item 34 of Schedule 1 to the Bill.

Item 12           Subsections 46(2AA) to (2C)

55.           This item repeals subsections 46(2AA), 46(2AB), 46(2AC), 46(2B) and 46(2C) from Division 3 of Part 2 of the Migration Act.

56.           Current subsection 46(2AA) limits the kinds of personal identifiers that an officer can require a person to provide for the purposes of paragraph 46(2A)(ab).  It allows for a broad range of types of personal identifiers to be required of persons applying for a temporary safe haven visa or any other visa of a class that the regulations designate as a class of humanitarian visas, and a still broader range of types of personal identifiers which may be required of persons applying for a protection visa.

57.           The repeal of subsection 46(2AA) reflects the policy intention that there should not be limitations on the types of personal identifiers which can be required from persons who have lodged an application for a visa.  The intention is that any requirement to provide a personal identifier will be made under the new section 257A which provides that any type of personal identifier, as defined in subsection 5A(1) of the Migration Act, may be required.  The repeal of section 46(2AA) is consequential to the insertion of the new broad power to collect personal identifiers inserted by item 34 of Schedule 1 to the Bill.

58.           Current subsection 46(2AB) states that officers using their powers under current paragraph 46(2A)(ab) must not contravene regulations made for the purposes of paragraph 46(2AC)(b).  As this item also repeals subsection 46(2AC), subsection 46(2AB) has no application.  The repeal of subsection 46(2AB) is consequential to the repeal of subsection 46(2AC).

59.           Current subsection 46(2AC) provides that the regulations may prescribe other types of personal identifiers, or may limit the type of personal identifiers that can be required in prescribed circumstances under subsection 46(2AA).  As this item repeals subsection 46(2AA), the limitation in subsection 46(2AC) is no longer necessary.  The repeal of subsection 46(2AC) is consequential to the repeal of subsection 46(2AA). 

60.           Current subsection 46(2B) states that the applicant is taken not to have complied with a requirement referred to in paragraph 46(2A)(ab) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer. 

61.           The repeal of subsection 46(2B) reflects that when the Minister or an officer makes a requirement to provide personal identifiers under the new subsection 257A(1), in accordance with new subsection 257A(5), the personal identifiers must be:

·          provided by way of one or more identification tests carried out by an authorised officer or an authorised system; or

 

·          if another way is specified by the Minister or officer— provided in that specified way.

62.           New subsection 257A(5) addresses the ways in which personal identifiers are to be provided when a person is required by the Minister or an officer to provide one or more personal identifiers for the purposes of the Migration Act or the Migration Regulations.  The repeal of subsection 46(2B) is consequential to the insertion of new subsection 257A(5) of item 34 of Schedule 1 to the Bill.

63.           Current subsection 46(2C) limits the application of current subsection 46(2B).  Subsection 46(2C) is repealed as a consequence to the repeal of subsection 46(2B).  

Item 13           Paragraph 166(1)(a)

64.           This item omits the words “referred to in subsection (5)” from paragraph 166(1)(a) of Division 5 of Part 2 of the Migration Act.

65.           This item is consequential to item 16 of Schedule 1 to this Bill which repeals subsection 166(5) from Division 5 of Part 2 of the Migration Act.

Item 14           Paragraph 166(1)(c)

 

66.           This item inserts the words “under section 257A” after the word “officer” in paragraph 166(1)(c) of Division 5 of Part 2 of the Migration Act.

67.           Current paragraph 166(1)(c) provides the power for a clearance officer to require a person entering Australia to provide one or more personal identifiers listed in subsection 166(5) to a clearance authority before an event referred to in subparagraph 172(1)(a)(iii) or 172(1)(b)(iii) or paragraph 172(1)(c) occurs. 

68.           This amendment reflects that any requirement for personal identifiers made by a clearance officer for the purposes of paragraph 166(1)(c) is made under the new section 257A of the Migration Act to be inserted by item 34 of Schedule 1 to the Bill, which provides that any type of personal identifier, as defined in subsection 5A(1) of the Migration Act, may be required.

Item 15           Paragraph 166(1)(c)

 

69.           This item omits the words “referred to in subsection (5)” from paragraph 166(1)(c) of Division 5 of Part 2 of the Migration Act.

70.           This amendment is consequential to item 16 of Schedule 1 to the Bill which repeals subsection 166(5) from Division 5 of Part 2 of the Migration Act.

Item 16           Subsections 166(5), (7) and (8)

 

71.           This item repeals subsections 166(5), 166(7) and 166(8) from Division 5 of Part 2 of the Migration Act.

72.           Current subsection 166(5) limits the types of personal identifiers that a person may be required to provide under paragraph 166(1)(c).  The repeal of subsection 166(5) reflects the policy intention that there should not be limitations on the type of personal identifiers which can be required from persons entering Australia.  The intention is that any requirement will be made under the new section 257A which provides that any type of personal identifier, as defined in subsection 5A(1) of the Migration Act, may be required. 

73.           Current subsection 166(7) states that a person is taken not to have complied with a requirement to provide a personal identifier under paragraph 166(1)(c) unless the personal identifier is provided by way of one or more identification tests carried out by an authorised officer or authorised system. 

74.           The repeal of subsection 166(7) reflects that when the Minister or an officer makes a requirement to provide personal identifiers under the new subsection 257A(1), in accordance with new subsection 257A(5), the personal identifiers must be:

·          provided by way of one or more identification tests carried out by an authorised officer or an authorised system; or

 

·          if another way is specified by the Minister or officer— provided in that specified way.

 

75.           Therefore, new subsection 257A(5) addresses the ways in which personal identifiers are to be provided when a person is required by the Minister or an officer to provide one or more personal identifiers for the purposes of this Act or the regulations.

76.           Current subsection 166(8) provides that the current subsection 166(7) does not apply in prescribed circumstances.  As a consequence of the repeal of subsection 166(7), subsection 166(8) is to be repealed.

Item 17           Paragraph 170(1)(a)

 

77.          This item omits the words “referred to in subsection (2A)” from paragraph 170(1)(a) in Division 5 of Part 2 of the Migration Act.

 

78.          This is a consequential amendment to item 21 of Schedule 1 to this Bill which repeals subsection 170(2A) from Division 5 of Part 2 of the Migration Act.

 

Item 18           Paragraph 170(1)(c)

 

79.          This item inserts the words “under section 257A” after the word “officer” in paragraph 170(1)(c) of Division 5 of Part 2 of the Migration Act.

 

80.           Current paragraph 170(1)(c) provides the power for a clearance officer to require a person who travels, or appears to intend to travel, on an overseas vessel, from a port to another port, to comply with any requirement to provide one or more personal identifiers listed in subsection 170(2A) to a clearance authority. 

81.          This amendment reflects that any requirement for personal identifiers made by a clearance officer for the purposes of paragraph 170(1)(c) is made under the new section 257A of the Migration Act to be inserted by item 34 of Schedule 1 to the Bill, which provides that any type of personal identifier, as defined in subsection 5A(1) of the Migration Act, may be required.

 

 Item 19          Paragraph 170(1)(c)

           

82.          This item omits the words “referred to in subsection (2A)” from paragraph 170(1)(c) of Division 5 of Part 2 of the Migration Act.

 

83.           This item is a consequential amendment to item 21 of Schedule 1 to the Bill which repeals subsection 170(2A) from Division 5 of Part 2 of the Migration Act.

Item 20           Subsection 170(2)

 

84.           This item repeals subsection 170(2) in Division 5 of Part 2 of the Migration Act, and substitutes new subsection 170(2).

85.           Current subsection 170(2) states that a person is to comply with subsection 170(1) in a prescribed way.  Nothing is currently prescribed in the Migration Regulations.

86.           New subsection 170(2) states that a person is to comply with paragraphs 170(1)(a) and 170(1)(b) in a prescribed way.  That is, under the new subsection 170(2), it will not be possible to prescribe in the Migration Regulations how a person is to comply with paragraphs 170(1)(c) and 170(1)(d).

87.           It is not necessary to prescribe in the Migration Regulations how a person is to comply with paragraphs 170(1)(c) and 170(1)(d).  A person who is travelling, or appearing to intend to travel, on an overseas vessel from a port to another port will be with a clearance officer who can, under new subsection 257A(5) to be inserted by item 34 of Schedule 1 to the Bill, require that the personal identifiers must be:

·          provided by way of one or more identification tests carried out by an authorised officer or an authorised system; or

·          If another way is specified by the Minister or officer - provided in that specified way.

88.               This amendment aligns new subsection 170(2) to current subsection 166(3), which operates similarly.

Item 21           Subsections 170(2A), (4) and (5)

 

89.               This item repeals subsections 170(2A), 170(4) and 170(5) from Division 5 of Part 2 of the Migration Act.

90.               Current subsection 170(2A) limits the types of personal identifiers that a person may be required to provide under paragraph 170(1)(c).  The repeal of subsection 170(2A) reflects the policy intention that there should not be limitations on the type of personal identifiers which can be required from persons travelling, or intending to travel, on an overseas vessel from a port to another port.  The intention is that any requirement to provide personal identifiers will be made under new section 257A, inserted by item 34 of Schedule 1 to the Bill, which provides that any type of personal identifier, as defined in subsection 5A(1) of the Migration Act, may be required. 

91.               Current subsection 170(4) provides that a person is taken not to have complied with a requirement under paragraphs 170(1)(c) and 170(1)(d) unless the personal identifier is provided by way of one or more identification tests carried out by an authorised system.

92.               The repeal of subsection 170(4) reflects that when the Minister or an officer makes a requirement to provide personal identifiers under new subsection 257A(1), in accordance with new subsection 257A(5), the personal identifier must be:

·          provided by way of one or more identification tests carried out by an authorised officer or an authorised system; or

 

·          if another way is specified by the Minister or officer— provided in that specified way.

93.               Therefore, new subsection 257A(5) addresses the ways in which personal identifiers are to be provided when a person is required by the Minister or an officer to provide one or more personal identifiers for the purposes of the Migration Act or the Migration Regulations.  This item is consequential to the insertion of new subsection 257A(5) in item 34 of Schedule 1 to the Bill.

94.               Current subsection 170(5) provides that current subsection 170(4) does not apply in prescribed circumstances.  As a consequence of the repeal of subsection 170(4), subsection 170(5) is to be repealed.

Item 22           Paragraph 175(1)(a)

 

95.               This item omits the words “referred to in subsection (2A)” from paragraph 175(1)(a) in Division 5 of Part 2 of the Migration Act.

 

96.               This is a consequential amendment to item 26 of Schedule 1 to the Bill, which repeals subsection 175(2A).

 

Item 23           Paragraph 175(1)(c)

 

97.               This item inserts “under section 257A” after the word “officer” in paragraph 175(1)(c) of Division 5 of Part 2 of the Migration Act.

98.               Current paragraph 175(1)(c) provides the power for a clearance officer to require a person departing Australia to comply with any requirement made by a clearance officer to provide one or more personal identifiers listed in subsection 175(2A) to a clearance authority.

99.               This amendment reflects that any requirement for personal identifiers made by a clearance officer for the purposes of paragraph 175(1)(c) is made under new section 257A of the Migration Act to be inserted by item 34 of Schedule 1 to the Bill, which provides that any type of personal identifier, as defined in subsection 5A(1) of the Migration Act, may be required.

 

Item 24           Paragraph 175(1)(c)

 

100.           This item omits the words “referred to in subsection (2A)” from paragraph 175(1)(c) of Division 5 of Part 2 of the Migration Act.

101.           This item is a consequential amendment to item 26 of Schedule 1 to the Bill, which repeals subsection 175(2A) from Division 5 of Part 2 of the Migration Act.

Item 25           Subsection 175(2)

102.           This item repeals subsection 175(2) in Division 5 of Part 2 of the Migration Act, and substitutes a new subsection 175(2).

103.           Current subsection 175(2) states that a person is to comply with subsection 175(1) in a prescribed way.  Nothing is currently prescribed in the Migration Regulations.

104.           New subsection 175(2) states that a person is to comply with paragraphs 175(1)(a) and 175(1)(b) in a prescribed way.  That is, under new subsection 175(2), it will not be possible to prescribe in the Migration Regulations how a person is to comply with paragraphs 175(1)(c) and 175(1)(d).

105.       It is not necessary to prescribe in the Migration Regulations how a person is to comply with paragraphs 175(1)(c) and 175(1)(d).  A person who is on board, or about to board, a vessel that is due to depart from a place in Australia to a place outside Australia will be with a clearance officer who can under new subsection 257A(5), to be inserted by item 34 of Schedule 1 to the Bill, require that the personal identifiers must be:

·          provided by way of one or more identification tests carried out by an authorised officer or an authorised system; or

·          If another way is specified by the Minister or officer - provided in that specified way.

106.           This amendment aligns new subsection 175(2) to current subsection 166(3), which operates similarly.

Item 26           Subsections 175(2A), (4) and (5)

107.           This item repeals subsections 175(2A), 175(4) and 175(5) from Division 5 of Part 2 of the Migration Act.

108.           Current subsection 175(2A) limits the types of personal identifiers that a person may be required to provide under paragraph 175(1)(c).  The repeal of subsection 175(2A) reflects the policy intention that there should not be limitations on the type of personal identifiers which can be required from persons seeking to depart Australia. The intention is that any requirement to provide personal identifiers will be made under new section 257A, inserted by item 34 of Schedule 1 to this Bill, which provides that any type of personal identifier, as defined in subsection 5A(1) of the Migration Act, may be required.

109.           Current subsection 175(4) provides that a person is taken not to have complied with a requirement under paragraphs 175(1)(c) and 175(1)(d) unless the personal identifier is provided by one or more identification tests carried out by an authorised system.

110.           The repeal of subsection 175(4) reflects that when the Minister or an officer makes a requirement to provide personal identifiers under new subsection 257A(1), in accordance with new subsection 257A(5), the personal identifier must be:

·          provided by way of one or more identification tests carried out by an authorised officer or an authorised system; or

 

·          if another way is specified by the Minister or officer— provided in that specified way.

111.           Therefore, new subsection 257A(5) addresses the ways in which personal identifiers are to be provided when a person is required by the Minister or an officer to provide one or more personal identifiers for the purposes of the Migration Act or the Migration Regulations.  This amendment is consequential to the insertion of new subsection 257A(5) in item 34 of Schedule 1 to the Bill.

112.           Current subsection 175(5) provides that current subsection 175(4) does not apply in prescribed circumstances.  As a consequence of the repeal of subsection 175(4), subsection 170(5) is to be repealed.

Item 27           Paragraphs 188(1)(a) and (b)

113.           This item omits the words “referred to in subsection (4A)” from paragraphs 188(1)(a) and 188(1)(b) of Division 7 of Part 2 of the Migration Act.

114.           This is a consequential amendment to item 28 which repeals subsection 188(4A) from Division 7 of Part 2 of the Migration Act.  

Item 28           Subsections 188(4) to (7)

115.           This item repeals subsections 188(4), 188(4A), 188(5), 188(6) and 188(7) from Division 7 of Part 2 of the Migration Act.

116.           Current subsection 188(4) provides, if prescribed circumstances exist, an officer must require a person who the officer knows or reasonably suspects is a non-citizen to provide personal identifiers.  Current subsection 188(4A) limits the types of personal identifiers that an officer can require the person to provide.

117.           Current subsection 188(5) indicates that subsection 188(4) does not limit the officer’s power under subsection 188(1) to require the person to provide evidence of the person’s identity or evidence of being a lawful non-citizen.

118.           New subsection 257A(4), inserted by item 34 of Schedule 1 to the Bill, provides the ability to prescribe circumstances when the Minister or an officer must require personal identifiers from a person.  As a consequence of this amendment, subsection 188(4) is to be repealed.  As a consequence of the repeal of subsection 188(4), subsection 188(5) is to be repealed. 

119.           The repeal of subsection 188(4A) reflects the policy intention that there should not be limitations on the type of personal identifiers which can be required from persons. The intention is that any requirement to provide personal identifiers will be made under the new section 257A, to be inserted by item 34 of Schedule 1 to the Bill, which provides that any type of personal identifier, as defined in subsection 5A(1) of the Migration Act, may be required.

120.           Current subsection 188(6) provides that a person is not taken to have complied with a requirement under subsection 188(4) unless the personal identifier is provided by one or more identification tests carried out by an authorised officer. 

121.           The repeal of subsection 188(6) reflects that when the Minister or an officer makes a requirement to provide personal identifiers under new subsection 257A(1), in accordance with new subsection 257A(5), the personal identifier must be:

·          provided by way of one or more identification tests carried out by an authorised officer or an authorised system; or

 

·          if another way is specified by the Minister or officer— provided in that specified way.

 

122.           Therefore, new subsection 257A(5) addresses the ways in which personal identifiers are to be provided when a person is required by the Minister or an officer to provide one or more personal identifiers for the purposes of the Migration Act or the Migration Regulations.  This amendment is consequential to the insertion of new subsection 257A(5) in item 34 of Schedule 1 to the Bill.

123.           Current subsection 188(7) provides that current subsection 188(6) does not apply in prescribed circumstances.  As a consequence of the repeal of subsection 188(6), subsection 188(7) is to be repealed.

Item 29           Section 190 (heading)

124.           This item repeals and substitutes the heading of section 190 in Division 7 of Part 2 of the Migration Act.

 

125.           The current heading of section 190 is “Non-compliance with immigration clearance or section 192 basis of detention”.

 

126.           The new heading of section 190 is “Non-compliance with immigration clearance or requirement to provide personal identifier”.

 

127.           This amendment is consequential to item 30, which amends subsection 190(2) of the Migration Act.   

Item 30           Subsection 190(2) 

 

128.           This item omits the words after “non-citizen” from subsection 190(2) of Division 7 of Part 2 of the Migration Act and substitutes them with the words “if, but not only if:

(a) that person fails to provide a personal identifier, under section 257A, of a type or types prescribed; and

(b) prescribed circumstances exist.”  

129.           This item reflects amendments made by items 31 and 34 of Schedule 1 to the Bill. Item 31 repeals current subsection 192(2A) and item 34 inserts new section 257A.

130.           Current subsection 190(2) provides that, for the purposes of section 189, an officer suspects on reasonable grounds that a person in Australia is an unlawful non-citizen if, but not only if, that person fails to provide a personal identifier, under subsection 192(2A), of a type or types prescribed.  No types of personal identifiers are currently prescribed under this subsection.

131.           The effect of this amendment is that, for the purposes of section 189, an officer would suspect on reasonable grounds that a person in Australia is an unlawful non-citizen if, but not only if, that person fails to provide a personal identifier, under new section 257A, of a type prescribed and in circumstances prescribed.  

132.           The ability to prescribe the types of personal identifiers and circumstances for the purposes of new subsection 190(2), will limit the operation of that subsection to when specific types of personal identifies are not provided in specific circumstances.  

Item 31           Subsections 192(2A) to (2C) 

 

133.           This item repeals subsections 192(2A), 192(2AA) 192(2B) and 192(2C) from Division 7 of Part 2 of the Migration Act.

134.           Current subsection 192(2A) provides, if prescribed circumstances exist, a non-citizen must be required by an officer to provide one or more personal identifiers. Current subsection 192(2AA) limits the types of personal identifiers that a person may be required to provide under subsection 192(2A).  

135.           New subsection 257A(4), inserted by item 34 of Schedule 1 to the Bill, provides the ability to prescribe circumstances when the Minister or an officer must require personal identifiers from a person.  As a consequence of this amendment, subsection 192(2A) is to be repealed.  

136.           As a consequence of the repeal of subsection 192(2A), subsection 192(2AA) is to be repealed. The repeal of subsection 192(2AA) reflects the policy intention that there should not be limitations on the types of personal identifiers which can be required from a person. The intention is that any requirement will be made under new section 257A, which provides that any type of personal identifier, as defined in subsection 5A(1) of the Migration Act, may be required. 

137.           Current subsection 192(2B) provides when a person is taken not to have complied with a requirement to provide personal identifiers for the purposes of subsection 192(2A) unless it is provided by one or more identification tests carried out by an authorised officer. 

138.           The repeal of subsection 192(2B) reflects that when the Minister or an officer makes a requirement to provide personal identifiers under new subsection 257A(1), in accordance with new subsection 257A(5), the personal identifier must be:

·          provided by way of one or more identification tests carried out by an authorised officer or an authorised system; or

 

·          if another way is specified by the Minister or officer— provided in that specified way.

139.           Therefore, new subsection 257A(5) addresses the ways in which personal identifiers are to be provided when a person is required by the Minister or an officer to provide one or more personal identifiers for the purposes of the Migration Act or the Migration Regulations.  This amendment is consequential to the insertion of new subsection 257A(5) in item 34 of Schedule 1 to the Bill.

140.           Current subsection 192(2C) provides that current subsection 192(2B) does not apply in prescribed circumstances. As a consequence of the repeal of subsection 192(2B), subsection 192(2C) is to be repealed.

Item 32            Section 192A

 

141.           This item repeals section 192A from Division 7 of Part 2 of the Migration Act.

142.           Current section 192A provides that an authorisation of identification tests may be requested if the person is required under section 188 or 192 to provide personal identifiers.  

143.           Current sections 188 and 192 are being amended so that they no longer provide the power for an officer to require personal identifiers.  The power to collect personal identifiers is being consolidated into new section 257A which is inserted by item 34 of Schedule 1 to the Bill.  Authorisations under current section 192A have been rarely requested.  As a result, current section 192A is to be repealed.  

Item 33           Division 13 of Part 2 (heading)

144.           This item repeals the heading “Division 13-Examination, search and detention” from Division 13 of Part 2 of the Migration Act and substitutes “Division 13-Examination, search, detention and identification”.

145.           The purpose of this amendment is to clarify that that Division 13 of Part 2 of the Migration Act deals with identification of persons in addition to examination, search and detention. 

Item 34           After section 257

146.           This item inserts a new section 257A after section 257 into Division 13 of Part 2 of the Migration Act.

147.           New section 257A is entitled “257A Person may be required to provide personal identifiers”. New section 257A contains a broad power to require a person to provide personal identifiers. 

148.           New subsection 257A(1) provides that subject to subsection 257A(3), the Minister or an officer may, in writing or orally, require a person to provide one or more personal identifiers for the purposes of this Act or the Regulations.

149.           The effect of new subsection 257A(1) is that the Minister or an officer has a discretionary power to require, in writing or orally, a person to provide one or more personal identifiers for the purposes of the Migration Act or the Migration Regulations.

150.           A purpose of the amendment is that any officer as defined in subsection 5(1) of the Migration Act can make a requirement of a person under new subsection 257A(1).  Under new subsection 257A(1), the Minister or his or her delegate may also make a requirement of a person under new subsection 257A(1). The use of the term ‘Minister’ will also allow the Minister to make an arrangement under subsection 495A(1) for a computer program, based on simple and objective rules, to exercise the power in appropriate circumstances (see item 54).

151.           The broad nature of new subsection 257A(1) reflects the policy intention that personal identifiers can be required from an individual or group of persons for any purpose under the Migration Act or the Migration Regulations.  The intention is that the power to collect personal identifiers from persons should not be limited to particular circumstances, as is the situation under the current Migration Act. 

152.           This flexibility in the Migration Act will enable the department to effectively and quickly collect personal identifiers in response to emergent risks based on individual circumstances, recent events, and detected or realised threats.  This is more efficient and effective to enable the department to contribute to the national security effort in securing Australia’s border and protecting the Australian community than the current piecemeal authorisations to collect personal identifiers that are currently in the Act that limit the department to collecting personal identifiers to particular circumstances and not others.

153.           Under the amendments, a requirement to provide personal identifiers under new subsection 257A(1) can be made of any person for any purposes of the Migration Act or Migration Regulations, including, but not limited to, persons who are:

·          unauthorised maritime arrivals and have not lodged an application for a visa;

·          non-citizens who are applicants for temporary or permanent protection visas, or any other visa of a class that is designated as a class of humanitarian visas;

·          non-citizens who are applicants for any other class of visa created under the Migration Act or the Migration Regulations;

·          visa holders, who are the subject of identity fraud allegations;

·          persons (citizens and non-citizens) at the border seeking to enter or depart Australia.

154.           Under the new broad power, the department does not intend to commence collecting personal identifiers such as fingerprints from all non-citizens in all circumstances.  Rather, the intention is that the legislation provides the flexibility to require personal identifiers in some circumstances (for example, at time of visa application), or to not require personal identifiers in other cases unless the particular circumstances warrant (for example from visa holders in Australia, unless there are reasonable grounds to suspect identity fraud).  The purpose of new subsection 257A(1) is to provide a sound legislative basis for this collection, and to have the agility to target particular cohorts as risks become known.  Policy guidance will be issued to officers in exercising the power in subsection 257A(1).

155.           A further purpose of the amendment is to ensure that any type of personal identifier, as defined in the Migration Act, can be required from a person.  The term personal identifier is defined in current subsection 5A(1) of the Migration Act to mean:

·          fingerprints or handprints of a person (including those taken using paper and ink or digital live scanning technologies);

·          a measurement of a person’s height and weight;

·          a photograph or other image of a person's face and shoulders;

·          an audio or a video recording of a person (other than a video recording under section 261AJ);

·          an iris scan;

·          a person’s signature; and

·          any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914 .

156.           Under new subsection 257A(1), any type or types of personal identifier listed in subsection 5A(1), or prescribed in the Migration Regulations under paragraph 5A(1)(g) can be required from a person.  Currently, the department collects facial images, fingerprints and signatures.  The collection of fingerprints is currently limited to only some circumstances, and not others.  The department’s policy intention is that there should not be any limitations on the type of personal identifier, as defined in subsection 5A(1), which can be required from a person under the new section 257A.

157.           The effect of subsection 257A(1) is also that the power to require personal identifiers from a person, other than the power in Division 13AA of Part 2 of the Migration Act, is located in a single section of the Migration Act.  This reflects the intention that the complex legislative framework for the collection of personal identifiers, other than the power in Division 13AA of Part 2 of the Migration Act, should be streamlined into a single broad discretionary power to require one or more personal identifiers from a person.

158.           Simplifying and consolidating various powers to require a person to provide personal identifiers into a single section also removes the inconsistencies and duplication that currently exist in the Migration Act. Under the current Migration Act, the type of personal identifier that can be collected depends on the class of person who is being required to provide the personal identifier, the circumstances in which the personal identifier is being required, and the power under which the requirement is being made.  Under the new subsection 257A(1) any type or types of personal identifier, as defined in subsection 5A(1),  can be required from a person.              

159.           New subsection 257A(2) provides that without limiting subsection 257A(1), the purposes referred to in that subsection include any of the purposes referred to in subsection 5A(3) of Part 1 of the Migration Act.

160.           New subsection 257A(2) does not limit the purposes for which personal identifiers may be required under new subsection 257A(1), rather it provides that subsection 5A(3) is a non-exhaustive list of purposes for which personal identifiers can be required under subsection 257A(1).  Under new subsection 257A(1) a person can be required to provide personal identifiers for any purposes of the Migration Act or the Migration Regulations; the purposes are not limited to those included in subsection 5A(3).

161.           New subsection 257A(3) is entitled “ Only citizens entering Australia etc. may be required to provide personal identifiers” .  New subsection 257A(3) provides that if the Minister or officer knows or reasonably believes that a person is a citizen, the person must not be required to provide one or more personal identifiers under subsection 257A(1) unless section 166, 170 or 175 applies in relation to the person.

162.           The effect of new subsection 257A(3) is that a citizen can only be required, under new subsection 257A(1), by the Minister or an officer to provide one or more personal identifiers at the time they are entering Australia, are travelling on an overseas vessel from port to port, or when they are departing Australia.  This reflects the current provisions under the Migration Act where personal identifiers can only be required of a citizen when they are entering Australia, are travelling on an overseas vessel from port to port, or when they are departing Australia.   

163.           New subsection 257A(4) is entitled “ When requirement under subsection (1) must be made” .  New subsection 257A(4) provides that the Minister or an officer must require a person to provide one or more personal identifiers under subsection 257A(1) if prescribed circumstances exist.

164.           New subsection 257A(4) therefore provides the ability to prescribe circumstances in which personal identifiers must be required from a person.  The new subsection replaces similar powers to prescribe circumstances in current subsection 188(4) and subsection 192(2A); each subsection will be repealed under item 28 and item 31.

165.           The ability to prescribe circumstances under new subsection 257A(4) applies to both non-citizens and citizens.   However, the limitation in subsection 257A(3) on when personal identifiers can be required from citizens will continue to apply.  That is, the circumstances prescribed under new subsection 257A(4) for citizens cannot be circumstances where personal identifiers cannot be required from citizens under subsection 257A(3).  

166.           New subsection 257A(5) is entitled “ How personal identifiers must be provided” . New subsection 257A(5) provides that if a person is required to provide one or more personal identifiers under subsection 257A(1), those personal identifiers must be:

·           provided by way of one or more identification tests carried out by an authorised officer or an authorised system; or

·          if another way is specified by the Minister or officer - provided in that specified way.

167.           The purpose of new subsection 257A(5) is to stipulate how a person who has been required to provide a type or types of personal identifiers is to provide them.

168.           New paragraph 257A(5)(a) will provide the Minister or officer can require that the personal identifier be provided by way of one or more identification tests carried out by an authorised officer or an authorised system. 

169.           New paragraph 257A(5)(b) will also provide that the Minister or an officer can require that the personal identifier be provided by another way that is specified by the Minister or officer.  This will provide the Minister or officer with the ability to require a person provide personal identifiers in a way that is not an identification test carried out by an authorised officer or authorised system. 

170.           There are circumstances where it is not practical or efficient for personal identifiers to be provided by way of an identification test carried out by an authorised officer or an authorised system.  This reflects various provisions currently in the Migration Act which allow for personal identifiers to be provided otherwise than by an identification test (see for example current subsections 40(5) and 166(8)).  In these circumstances, new paragraph 257A(5)(b) provides the Minister or an officer with the ability to require personal identifiers in a specified way. 

171.           An example of where new paragraph 257A(5)(b) may be used is in the context of an applicant for a visa who has lodged the application from their home country.  The visa applicant may reside in a country where the department does not have the capabilities to collect personal identifiers by way of an identification test carried out by an authorised officer or authorised system, such as in a refugee camp.  In this circumstance, new paragraph 257A(5)(b) would allow the Minister or officer making the requirement, to specify another way the visa applicant is to provide the required personal identifiers.    

172.           Another example of where new paragraph257A(5)(b) is envisaged to be used is where personal identifiers can be obtained through a ‘verification check’, which is an efficient, quick and non-intrusive method involving a scan of fingers using a mobile hand-held device at the border.  In these circumstances, it is considered appropriate and efficient to be able to require a person to provide their personal identifiers other than by way of an identification test carried out by an authorised officer, which currently takes approximately 30 to 60 minutes to complete.

173.           The department has been conducting verification checks of non-citizens at two Australian international airports since 2012 on a consent basis.  The check involves a one-to-one check of fingerprints previously collected offshore as part of a visa application, on arrival at Perth and Melbourne airports. A mobile, hand-held device is used to scan fingers, which are then checked against the department’s fingerprint data holdings.  The identity of each passenger was verified in all cases.  More than 10,000 checks have been conducted since the checks commenced in 2012.  The same procedures and similar hand-held devices will be used in the future to conduct identity checks to be specified under new paragraph  257A(5)(b).

174.           The note under subsection 257A(5) provides that if the types of identification tests that the authorised officer may carry out are specified under section 5D, then each identification test must be of a type so specified.

175.           New subsection 257A(6) provides that if paragraph 257A(5)(b) applies, the person must comply with any requirements specified by the Minister or officer in providing one or more personal identifiers in the way specified under that paragraph.  The effect of this subsection is that if a person has been required to, and does not, provide personal identifiers in the way specified under paragraph 257A(5)(b) they will not have provided the required personal identifiers in accordance with section 257A.

176.           New subsection 257A(7) is entitled “Multiple requirements for personal identifiers may be made” . New subsection 257A(7) provides that a person may be required to provide one or more personal identifiers under subsection 257A(1):

·          more than once; and

·          whether or not the person has previously complied with a requirement under this Act or the regulations to provide one or more personal identifiers.

177.           The purpose of new subsection 257A(7) is to provide that the Minister or an officer can require personal identifiers from a person, under new subsection 257A(1), more than once.  A person may have numerous interactions with the department at different points in time where it is appropriate or necessary to require the person provide personal identifiers for the purposes of the Migration Act or the Migration Regulations again.  

178.           For example, the Minister or an officer may require that a person provide personal identifiers at the time the person lodged an application for a visa offshore, and again when the person was in immigration clearance and seeking to enter Australia.      

179.           New subsection 257A(8) is entitled “ Other provisions not limited or otherwise affected ”. New subsection 257A(8) provides that this section does not limit, or otherwise affect, any other provision of this Act under which a personal identifier may be required, provided or presented.

180.           The effect of this provision is section 257A does not limit, or otherwise affect, any other provision of the Migration Act under which a personal identifier may be required, provided or presented.

Item 35           Section 258

181.           This item repeals section 258 from Division 13 of Part 2 of the Migration Act and substitutes new section 258.

182.           Current section 258 provides that the Minister may, for the purposes of sections 40, 46, 166, 170, 175, 188 or 192, determine by legislative instrument, one or more of the following:

·          specified classes of persons who cannot be required to provide personal identifiers;

·          specified types of personal identifiers that specified classes of persons cannot be required to provide;

·          specified circumstances in which persons cannot be required to provide personal identifiers;

·          specified types of personal identifiers that, in specified circumstances, persons cannot be required to provide.

183.           New section 258 reflects that any requirement for personal identifiers will now be made under new section 257A. The new section 258 also simplifies the current section 258.  

184.           New paragraph 258(a) provides that the Minister may determine, by legislative instrument, that a specified person, or a person included in a specified class of persons, must not be required to provide, under section 257A:

·          any personal identifiers; or

·          one or more specified kinds of personal identifiers.

185.           New paragraph 258(b) provides that the Minister may determine, by legislative instrument, that a specified person, or a person included in a specified class of persons, must not be required in specified circumstances to provide under section 257A:

·          any personal identifiers; or

·          one or more specified kinds of personal identifiers.

 

186.           The purpose of this amendment is to simplify section 258 of the Migration Act.  The Minister will continue to be able to determine, by legislative instrument, that personal identifiers cannot be required, under new section 257A, from specified persons, or from specified persons in specified circumstances.

Item 36           Section 258A (heading)

187.           This item repeals the heading “258A When person cannot be required to provide personal identifier” from Division 13 of Part 2 of the Migration Act and substitutes new heading “258A When detainees must not be required to provide personal identifiers under section 257A”.

188.           This amendment reflects that the purpose of this section is to set out when immigration detainees are not required to provide personal identifiers under the new section 257A.

Item 37           Section 258A

 

189.           This item omits the words “cannot be required under section 40, 46, 166, 170, 175, 188 or 192 to provide a personal identifier” from section 258A of Division 13 of Part 2 of the Migration Act and substitutes the words “must not be required to provide a personal identifier under section 257A”.  This item reflects that new section 257A, inserted by item 34 of Schedule 1 to the Bill, is the new source of power to require personal identifiers from persons in the Migration Act.

190.           The effect of the amendment is that a person in immigration detention cannot be required under new section 257A to provide personal identifiers, if during their detention, they have provided a personal identifier of that type under Division 13AA of the Migration Act.  

Item 38           Subsection 258B(1)

191.           This item repeals subsection 258B(1) from Division 13 of Part 2 of the Migration Act and substitutes new subsection 258B(1).

192.           Current subsection 258B(1) provides that, before an authorised officer carries out an identification test on a person for the purposes of sections 40, 46, 166, 170, 175, 188 or 192, the authorised officer must:

·          if the person is with an officer for the purposes of section 188 or 192, inform the person that the person may request that an authorisation be obtained under section 192A; and

·          in any other case - inform the person of such other matters as are prescribed. 

193.           New subsection 258B(1) provides that before an authorised officer carries out an identification test on a person for the purposes of section 257A, the authorised officer must inform the person of such matters as are prescribed.

194.           This is a consequential amendment to items 32 and 34 of Schedule 1 to the Bill. Item 32 repeals section 192A and item 34 inserts the new section 257A.

Item 39           Section 258C

195.           This item repeals section 258C from Division 13 of Part 2 of the Migration Act.

196.           Current section 258C in effect specifies that a person must be informed of certain matters when subsection 40(5), 46(2C), 166(8), 170(5), 175(5), 188(7) or 192(2C) apply.

197.           This amendment is consequential to items 9, 12, 16, 21, 26, 28 and 31 of Schedule 1 to the Bill which repeal the current subsections 40(5), 46(2C), 166(8), 170(5), 175(5), 188(7) and 192(2C). 

Item 40           Subsection 258D(1)

198.           This item omits the words “section 40, 46, 166, 170, 175, 188, or 192” from subsection 258D(1) of Division 13 of Part 2 of the Migration Act and substitutes “section 257A”.

199.           Current subsection 258D(1) provides that the manner in which an identification test is to be carried out on a person (under certain sections) may be prescribed by the regulations.  The amendment therefore provides that, when an identification test is carried out under the new broad power, the manner in which it is to be carried out can be prescribed by the regulations.  

200.           This is a consequential amendment to item 34 which inserts new section 257A into Division 13 of Part 2.  New section 257A provides a broad power to require personal identifiers from a person.

Item 41           Subsection 258D(2)

201.           This item omits the words “those sections” from subsection 258D(2) of Division 13 of Part 2 of the Migration Act, and substitutes “section 257A”.

202.           The phrase “those sections” refers to the sections mentioned in current subsection 258D(1).

203.           This item is consequential to the amendments to subsection 258D(1), contained in item 40 and to the insertion of new section 257A into Division 13 of Part 2 of the Migration Act, contained in item 34 of Schedule 1 to the Bill. 

204.           The effect of this amendment is that the Migration Regulations may prescribe the procedure and requirements that apply if a personal identifier is provided under new section 257A by the person otherwise than by way of an identification test.     

Item 42           Section 258E 

 

205.           This item omits the words “section 40, 46, 166, 170, 175, 188 or 192” from section 258E of Division 13 of Part 2 of the Migration Act and substitutes “section 257A”.

206.           This is a consequential amendment to item 34 of Schedule 1 to the Bill which inserts new section 257A into Division 13 of Part 2 of the Migration Act.

207.           Current section 258E sets out the general rules that apply when an authorised officer carries out an identification test on a person under sections 40, 46, 166, 170, 175, 188 and 192. The effect of the amendment is to instead refer to an identification test carried out under new section 257A.

Item 43           Paragraph 258E(d) 

 

208.           This item omits the words “test; and” from paragraph 258E(d) of Division 13 of Part 2 of the Migration Act and substitutes “test.”

209.           This is a consequential amendment to item 44 which repeals paragraph 258E(e). 

Item 44            Paragraph 258E(e)

 

210.           This item repeals paragraph 258E(e) from Division 13 of Part 2 of the Migration Act.

211.           Section 258E currently sets out general rules for when an identification test is carried out by an authorised officer under certain sections of the Migration Act.  All of paragraphs 258E(a) to 258E(e) must be satisfied.  The effect of paragraph (e) is that unless the authorised officer has reasonable grounds to believe that the person is not a minor or incapable person - the identification test must be carried out in accordance with the additional requirements in Division 13AB.  That is, there are additional requirements for carrying out an identification test (in certain circumstances) where personal identifiers are being collected from a minor or incapable person.

212.           This item is consequential to the amendments in items 48, 49, 50, 51, 52, and 53, which amend provisions in the Migration Act relating to the collection of personal identifiers from minors and incapable persons.  These amendments collectively ensure that when collecting personal identifiers from minors and incapable persons, under new section 257A, the consent and presence of a parent, guardian or independent person is not required.  

213.           The amendments are not intended to implement a universal policy to collect personal identifiers from minors and incapable persons.  Only a small number of minors will be affected by the amendments in specific circumstances and on a case-by-case basis, including offshore to protect persons from people smugglers and traffickers and to facilitate the genuine travel of minors and incapable persons to Australia.

Item 45           Section 258F

214.           This item omits the words “section 40, 46, 166, 170, 175, 188 or 192” from section 258F of Division 13 of Part 2 of the Migration Act and substitutes “section 257A”.

215.           Current section 258F provides that the carrying out of an identification test, for the purposes of  the Act, is not of itself taken to be cruel, inhuman or degrading or to be a failure to treat a person with humanity and with respect for human dignity.  The section also makes it clear that nothing in the Act itself authorises the carrying out of an identification test in a cruel, inhuman or degrading manner, or in a manner that fails to treat a person with humanity and with respect for human dignity.

216.           This amendment, which replaces the reference to various sections with a reference to new section 257A, is consequential to the amendments made by item 34 of Schedule 1 to the Bill.  Item 34 inserts new section 257A into Division 13 of Part 2 of the Migration Act.  New section 257A provides a broad power to require personal identifiers, and is the section under which identification tests can be required to be carried out to obtain personal identifiers. 

217.           The effect of this amendment is that the carrying out of an identification test under new section 257A is not of itself taken to be cruel, inhuman or degrading, or a failure to treat a person with humanity and with respect for human dignity.  However, section 258F continues to make it clear that nothing in the Act authorises the carrying out of the identification test in a cruel, inhuman or degrading manner, or in a manner that fails to treat a person with humanity and with respect for human dignity. 

218.           The amendments made by this item are consistent with amendments relating to powers to conduct identification tests under sections 40, 46, 166, 170, 175, 188 and 192.  Provisions in those sections relating to such powers are repealed (or repealed and substituted) by items 9, 12, 16, 21, 26, 28 and 31 respectively.

Item 46           Paragraph 261AA(3)(b)

219.           Subsection 261AA(3) makes it clear that Division 13AA of Part 2 of the Migration Act does not generally apply to a non-citizen who is in immigration detention only because he or she is detained for questioning detention under section 192 of the Act.  However, if a non-citizen is in immigration detention because he or she has been detained under section 192, and has not provided a prescribed type of personal identifier required under that section, then Division 13AA will apply to him or her.

220.           This item omits the words “that section” from paragraph 261AA(3)(b) of Division 13AA of Part 2 of the Migration Act, and substitutes “section 257A”.  The reference to “that section” is a reference to section 192 in Division 7 of Part 2 of the Migration Act.

 

221.           This amendment is consequential to items 31 and 34 of Schedule 1 to the Bill.  Item 31 repeals, among other provisions, subsection 192(2A) which currently provides that if a non-citizen is detained under subsection 192(1), in prescribed circumstances, they must be required to provide personal identifiers.  Item 34 inserts new section 257A into Division 13 of Part 2 of the Migration Act, which provides a broad power to require personal identifiers and replaces, among other provisions, the current power in subsection 192(2A).

 

222.           Therefore, this item reflects the amendments made by items 31 and 34 by referring, in paragraph 261AA(3)(b), to the new broad power contained in new section 257A.

Item 47           Paragraph 261AB(1)(a)

223.           This item inserts “, in writing or orally,” after the word “require” in paragraph 261AB(1)(a) in Division 13AA of Part 2 of the Migration Act.

 

224.           Paragraph 261AB(1)(a) states that one of the obligations of an authorised officer, other than in the circumstances prescribed for the purposes of subsection 261AA(1), is to require the non-citizen to provide one or more personal identifiers, of the type or types prescribed, by way of one or more identification tests carried out by the authorised officer.

 

225.           The purpose of this amendment is to clarify that the authorised officer may require orally, or in writing, one or more personal identifiers under section 261AB to be provided. 

Item 48           Subsection 261AL(1)

 

226.           This item omits the words “this Act” from subsection 261AL(1) in Division 13AB of Part 2 of the Migration Act, and substitutes the words “Division 13AA of this Part”.

227.           Current subsection 261AL(1) provides that a person who is less than 15 years old must not be required under this Act to provide a personal identifier other than a personal identifier consisting of:

·          a measurement of the person’s height and weight; or

 

·          the person’s photograph or other image of the person’s face and shoulders.



228.           The effect of the amendment will be that new subsection 261AL(1) will provide that a person who is less than 15 years old must not be required under Division 13AA of Part 2 to the Migration Act to provide a personal identifier other than a personal identifier consisting of:

·          a measurement of the person’s height and weight; or

·          the person’s photograph or other image of the person’s face and shoulders.

229.           The effect of the amendment made by this item is that the types of personal identifier that a non-citizen who is less than 15 years old can be required to provide under Division 13AA of Part 2 of the Act continue to be limited.  That is, a minor who is less than 15 years old and who is in immigration detention must not be required under Division 13AA to provide a personal identifier other than those specified above.

230.           However, the types of personal identifier that a minor who is less than 15 years old may be required to provide under new section 257A will no longer be limited. That is, any personal identifier listed in subsection 5A(1) may be required from a minor.

231.           The age of 15 years old was chosen when section 261AL was inserted into the Migration Act because this was consistent at the time with international comparisons in a migration context.  Current international comparisons now show a clear shift in this respect. 

232.           Among the Five Country Conference (FCC) partner countries, which the department has data exchange agreements with, in the United Kingdom, the age of collecting fingerprints from minors is 5 years and above. The department’s intent is to set the age of collecting fingerprints in policy to allow for flexibility to determine when personal identifiers will be collected.

233.           Minors who are at least 15 years old but who have not yet turned 18 years old have never been subject to the same restrictions in relation to the types of personal identifiers that they can be required to provide. 

234.           The amendment to subsection 261AL(1) therefore reflects the intention behind the new section 257A in Division 13 of Part 2 of the Migration Act, inserted by item 34 of Schedule 1 to the Bill, that the power to collect personal identifiers is to be applied equally to all persons.  Therefore, there is no exemption for minors in relation to the requirement to provide personal identifiers. 

Item 49           Subsections 261AL(2) to (4) 

Item 50           Subsection 261AL(5)

235.           Item 49 repeals subsections 261AL(2), 261AL(3) and 261AL(4) from Division 13AB of Part 2 of the Migration Act.

236.           Item 50 omits the words “this Act” from subsection 261AL(5) in Division 13AB of Part 2 of the Migration Act, and substitutes “Division 13AA of this Part”.

237.           Current subsection 261AL(2) provides that a non-citizen who is a minor must not be required under section 40, 46, 188 or 192 to provide a personal identifier by way of an identification test carried out by an authorised officer unless:

·          subject to subsection 261AL(3), a parent or guardian of the minor consents to the minor providing the personal identifier; or

 

·          if no parent or guardian of the minor is readily available, or the Minister is the minor’s guardian - an independent person consents to the minor providing the personal identifier.

 

238.           The effect of repealing subsection 261AL(2) is that there is no legislative requirement for the consent of a parent, guardian or independent person, when the power is exercised under new section 257A inserted by item 34 of Schedule 1 to the Bill.

239.           Current subsection 261AL(3) imposes a limit on the Minister’s ability to give consent, and current subsection 261AL(4) provides for further requirements relating to obtaining consent. The repeal of these subsections is consequential to the repeal of subsection 261AL(2).

240.           Current subsection 261AL(5) provides that if a person who is a minor provides a personal identifier, in accordance with a requirement under this Act, by way of an identification test carried out by an authorised officer, the test must be carried out in the presence of:

·          a parent or guardian of the minor; or



·          an independent person.

241.           Subsection 261AL(5) is amended in the same way as subsection 261AL(1).  That is, the subsection is now limited in application to personal identifiers required of minors under Division 13AA of Part 2 of the Migration Act.   

242.           The effect of the amendment is that where a minor in immigration detention provides a personal identifier in accordance with a requirement under Division 13AA of Part 2 of the Migration Act by way of an identification test carried out by an authorised officer, the identification test must be carried out in the presence of a parent or guardian of the minor, or an independent person (subject to the requirement specified in subsection 261AL(6)). 

243.           However, where a minor is required to provide a personal identifier by way of an identification test carried out by an authorised officer or an authorised system under the new broad power in section 257A, there will no longer be a legislative requirement for the identification test to be carried out in the presence of a parent, guardian or independent person.

244.           The amendments contained in items 49 and 50 are primarily a child protection measure aimed at preventing child trafficking and/or smuggling. In addition, the amendments will ensure that the power to collect personal identifiers is consistent for all persons, and to provide flexibility for officers to respond effectively and quickly to emergent risks. The amendments will address situations where a parent, guardian or independent person may seek to frustrate the collection of personal identifiers by way of an identification test by leaving a room where an identification test is to take place.  The amendments remove the ability of a parent, guardian or independent person to circumvent the department’s requirement for personal identifiers to be provided when requested.  The power to require a minor to provide a personal identifier without the consent or the presence of a parent, guardian or independent person, is expected only to be utilised in limited circumstances.  The consequence of failing to comply with this request would depend on the circumstances in which the personal identifier was requested to be provided.  For example, in the context of a visa application, it could mean refusal of the minor’s visa, or that their application for a visa is invalid.

Item 51           Subsection 261AM(1)

245.           This item omits the words “this Act” from subsection 261AM(1) in Division 13AB of Part 2 of the Migration Act, and substitutes the words “Division 13AA of this Part”.

246.           Current subsection 261AM(1) provides that a person who is an incapable person must not be required under this Act to provide a personal identifier other than a personal identifier consisting of:

·          a measurement of the person’s height and weight; or

 

·          the person’s photograph or other image of the person’s face and shoulders.

247.           The effect of the amendment made by this item is that the types of personal identifiers that a non-citizen who is an incapable person can be required to provide under Division 13AA of Part 2 of the Act continue to be limited.  That is, an incapable person who is in immigration detention must not be required under Division 13AA to provide a personal identifier other than those specified above.

248.           However, the type of personal identifier that an incapable person who is not in immigration detention may be required to provide will no longer be limited.

249.           The amendment to subsection 261AM(1) reflects the intention behind the new section 257A of Division 13 of Part 2 of the Migration Act, inserted by item 34 of Schedule 1 to the Bill, that the power to collect personal identifiers is to be applied equally to all persons.  Therefore, there is no exemption for incapable persons in relation to the requirement to provide personal identifiers.

250.           Personal identifiers are very rarely collected from incapable persons.  The policy intent is not to increase the collection of personal identifiers from such persons.  Under policy, it is intended that personal identifiers are not to be required to be provided from incapable persons under the broad power in new section 257A, to be inserted by item 34 of Schedule 1 to the Bill , without the consent or presence of a parent, guardian or independent person, except in exceptional circumstances, such as intelligence that a particular person poses a higher risk.  The consequence of failing to comply with such a requirement to provide a personal identifier would depend on the circumstances in which the personal identifier was requested to be provided.  For example, in the case of a visa application, it would mean refusal of the incapable person’s visa , or that their application for a visa is invalid.

Item 52           Subsections 261AM(2) and (3) 

Item 53           Subsection 261AM(4)

251.           Item 52 repeals subsections 261AM(2) and 261AM(3) from Division 13AB of Part 2 of the Migration Act.

252.           Item 53 omits the words “this Act” from subsection 261AM(4) in Division 13AB of Part 2 of the Migration Act, and substitutes “Division 13AA of this Part”.

253.           Current subsection 261AM(2) provides that a non-citizen (other than a minor) who is an incapable person must not be required under section 40, 46, 188 or 192 to provide a personal identifier by way of an identification test carried out by an authorised officer unless:

·          a parent or guardian of the incapable person consents to the incapable person providing the personal identifier; or

 

·          if no parent or guardian of the incapable person is readily available - an independent person consents to the incapable person providing the personal identifier.

 

254.           The effect of the repeal of subsection 261AM(2) is that there is no legislative requirement for the consent of a parent, guardian or independent person, when the power is exercised under new section 257A inserted by item 34 of Schedule 1 to the Bill.

255.           Current subsection 261AM(3) provides for further requirements relating to obtaining consent.  The repeal of this subsection is consequential to the repeal of subsection 261AM(2).

256.           Current subsection 261AM(4) provides that if a person who is an incapable person provides a personal identifier, in accordance with a requirement under this Act, by way of an identification test carried out by an authorised officer, the test must be carried out in the presence of:

·          a parent or guardian of the incapable person; or



·          an independent person.

257.           Subsection 261AM(4) is amended in a similar way to subsections 261AL(1) and 261AL(5) (although those subsections apply to minors).  That is, the subsection is now limited in application to incapable persons in immigration detention. 

258.           The effect of the amendment is that where an incapable person in immigration detention provides a personal identifier in accordance with a requirement under Division 13AA of Part 2 of the Migration Act by way of an identification test, the identification test must be carried out in the presence of a parent or guardian of the incapable person, or an independent person. 

259.           However, where an incapable person is required to provide a personal identifier by way of an identification test carried out by an authorised officer or authorised system under the new broad power in section 257A, there will no longer be a legislative requirement for the identification test to be carried out in the presence of a parent, guardian or independent person.

260.           Generally, the overriding purposes of the amendments contained in items 52 and 53 are to ensure that the power to collect personal identifiers is consistent for all persons, and to provide flexibility for departmental officers to respond effectively and quickly to emergent risks.  In practice, personal identifiers are not currently collected from incapable persons, but the ability to collect personal identifiers from an incapable person, where an exceptional circumstance arises, would be authorised under new section 257A inserted by item 34 of Schedule 1 to the Bill.  Under policy, it is intended that personal identifiers are not to be required from incapable persons under the broad power in new section 257A without the consent or the presence of a parent, guardian or independent person unless this would prevent the department from collecting personal identifiers where a requirement has been made.  The consequence of a failure to comply with the requirement to provide a personal identifier would depend on the circumstances in which the personal identifier was requested to be provided.  For example, in the case of a visa application, it could mean refusal of the incapable person’s visa, or that their visa application was invalid.

Item 54           After paragraph 495A(3)(a)

261.           This item inserts “(aa) section 257A” after paragraph 495A(3)(a) in Division 2 of Part 9 of the Migration Act.

 

262.           Current subsection 495A(1) provides that the Minister may arrange for the use, under the Minister’s control, of computer programs for any purposes for which the Minister may, or must, under the designated migration law :

 

·          make a decision; or

 

·          exercise any power, or comply with any obligation; or

 

·          do anything else related to making a decision, exercising a power, or complying with an obligation.

 

263.           Current subsection 495A(2) provides that the Minister is taken to have made, exercised, complied with, or done (as the case requires) any of the things mentioned in the preceding paragraph if it was done by the operation of a computer program under an arrangement made under subsection 495A(1).

 

264.           Current subsection 495A(3) sets out which provisions are the designated migration law.

 

265.           This amendment includes new section 257A of Division 13 of Part 2 of the Migration Act as part of the definition of designated migration law.  This is to reflect the policy intention that the Minister is to have the ability to make an arrangement under subsection 495A(1) for a computer program to exercise the power to make a requirement for personal identifiers under new section 257A.  

 

266.           This amendment will permit the Minister to make an arrangement under subsection 495A(1) for a computer program to make a requirement under new section 257A.  This can be used in circumstances where a computer program can be programmed to exercise the power under section 257A based on simple and objective criteria. For example, when a person lodges a visa application and a computer program has been programmed to exercise the power under section 257A in respect of visa applications based on simple and objective rules.

Item 55           Transitional provision—requirement to provide personal identifiers

267.           This item sets out the process where, before the commencement of this item, a person was required to provide a personal identifier under section 46, 166, 170, 175 or 188 of the Migration Act or under regulations made for the purposes of section 40, the person has not complied with the requirement, and the period for complying with the requirement has not ended.

268.           This item provides that in such a situation, despite the amendments to the Migration Act made by this Schedule, the relevant provisions of that Act continue to apply in relation to the requirement to provide a personal identifier, as if those amendments under Schedule 1 to this Bill had not been made.

Item 56           Transitional provision—request for an authorisation under section 192A of the Migration Act 1958

269.           This item sets out the process where, before the commencement of this item, a person requested that an authorisation be obtained under section 192A of the Migration Act, and immediately before that commencement either an application for the authorisation has not been made under that section or an application for the authorisation has been made under that section but no decision on the application has been made.

 

270.           This item provides that in such a situation, despite the repeal of section 192A made by this Schedule, section 192A continues to apply in relation to the requested authorisation as if that repeal had not occurred.

Item 57           Savings provision—authorisation given under section 192A of the Migration Act 1958

271.           This item sets out the process when an authorisation was given under section 192A of the Migration Act and the authorisation is in force immediately before the commencement of this item.

 

272.           This item provides that the authorisation continues in force as if section 192A of the Migration Act had not been repealed by this Schedule.

Item 58           Savings provision—regulations made for the purposes of subsection 258B(1) of the Migration Act 1958

273.           This item provides that regulations made for the purposes of subsection 258B(1) of the Migration Act, and in force immediately before the commencement of this item, continue in force and may be dealt with as if they had been made under subsection 258B(1) as amended by Schedule 1 to this Bill.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

STATEMENT OF COMPATIBILITY FOR A BILL OR LEGISLATIVE INSTRUMENT THAT RAISES HUMAN RIGHTS ISSUES

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

MIGRATION LEGISLATION AMENDMENT (STRENGTHENING BIOMETRICS INTEGRITY) BILL

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

1.                   The Migration Amendment (Strengthening Biometrics Integrity) Bill 2015 (the Bill) amends the Migration Act 1958 (the Act) to implement measures to detect identity fraud and conduct appropriate security, law enforcement and immigration checks prior to visa grant, at touch-points during travel to Australia, post-arrival in the Australian community, and for any subsequent visas to remain in Australia.  The capacity to confirm identity is a critical enabler of the Department of Immigration and Border Protection’s (the department) capability to strengthen Australia’s border and protect the Australian community.

2.                   International law does not provide a person with the right to enter a country of which they are not a national.  The collection of biometrics (termed ‘personal identifiers’ in the Act) is essential to establish the identity of non-citizens, as checks using personal identifiers are more accurate than document-based checks of biographic details, such as name, date of birth and nationality.  Under the department’s risk-based approach, personal identifiers are currently collected from only a small number of non-citizens who are granted a visa to enter and remain in Australia each year. In 2013/14, less than two percent of people granted a visa provided their personal identifiers to the department.

3.                   The success to date of the department’s biometric programme demonstrates the value of personal identifiers in protecting Australia’s border and strengthening the integrity of Australia’s migration programme.  Due to the department’s biometric programme, more than 9,000 instances of fingerprint matches with Australian law enforcement agencies and Five Country Conference partner countries (Canada, New Zealand, United Kingdom and United States), have revealed undisclosed security and criminal histories, as well as discrepancies between the biographic data provided to the department and that provided to another agency.

4.                   The Bill will allow more widespread collection of personal identifiers.  Under policy, this wider power will be used to allow the collection of personal identifiers from higher-risk non-citizens, many of whom may not have not been subject to biometric-based checks because they arrived prior to commencement of the department’s biometrics programme, or they were not part of a cohort where biometrics were collected at time of arrival.  This will enable the detection of undisclosed adverse information, which would have been detected had the individual previously provided personal identifiers.

5.                   The identities of non-citizens that the department establishes have significant consequences beyond admission to Australia, including accessing Commonwealth, State and Territory government services.  It is essential, therefore, that identity is accurate.  Cumulatively, the measures in the Bill enhance the capabilities of Australia’s border and immigration officers to effectively identify persons who cross Australia’s border and live in the Australian community.

Overview of measures

6.                   Outlined below is a brief summary of the substantive changes to the Act.  Consequential and minor amendments which do not engage human rights have not been addressed in this section.

7.                   The primary aim of the Bill is to address gaps and to reduce complexity and inconsistencies in the department’s current powers to collect personal identifiers.  The Bill also consolidates and strengthens the legislative framework for the collection of personal identifiers under the Act.  The Bill is in pursuit of a legitimate aim, namely security of Australia’s border and public safety.

8.                   The collection of personal identifiers from citizens and non-citizens under the Act is currently authorised in the following eight sections, depending on various circumstances:

a)                   s 40 - circumstances for granting visas (applies to non-citizens);

b)                   s 46 - valid visa application (applies to non-citizens);

c)                   s 166 - persons entering to present certain evidence of identity etc (applies to citizens and non-citizens);

d)                   s 170 - certain persons to present evidence of identity (applies to citizens and non-citizens)

e)                   s 175 - departing person to present certain evidence etc (applies to citizens and non-citizens);

f)                    s 188 - lawful non-citizen to give evidence of being so (applies to non-citizens and persons whom an officer reasonably suspects is a non-citizen);

g)                   s 192 - detention of visa holders whose visas liable to cancellation (applies to non-citizens); and

h)                   s 261AA - immigration detainees must provide personal identifiers (applies to non-citizens).

9.                   Each of the above provisions has been progressively introduced and expanded to authorise the collection of personal identifiers as the department’s biometrics programme has expanded since it commenced in 2006.  The amendments in the Bill will remove inconsistency that has resulted from multiple amendments to the current powers during the past 10 years.

10.               A new single power to collect personal identifiers will be introduced in section 257A of the Act.  This power will be broad and will provide that the Minister or an officer may, orally or in writing, require a person to provide one or more personal identifiers for the purposes of the Act or the Migration Regulations 1994 (the Regulations).  This power will replace the existing personal identifier collection powers, with the exception of the power to require personal identifiers from immigration detainees, which will be retained under section 261AA of the Act.  Subsection 257A(2) provides that the purposes include, but are not limited to, the purposes provided for in subsection 5A(3).

11.               Due to the department’s incremental approach to its biometrics programme, significant numbers of non-citizens have not been subject to the higher integrity identity, security, criminal and immigration history checks that are possible using personal identifiers, either because of the timing of their entry into Australia, or because of their method of arrival.  These amendments will enable this vulnerability to be addressed on a case-by-case basis. 

12.               Under the new broad power, the department will not commence collecting personal identifiers from all non-citizens who have not previously provided them.  The Bill is not introducing a universal collection policy.  Rather, the department will selectively collect personal identifiers from particular individuals who have not previously provided their personal identifiers, but who have been identified as of concern after their arrival in Australia, or due to their behaviour while living in the Australian community. 

13.               All the current circumstances that the Act currently authorises the collection of personal identifiers will continue to be authorised under the Bill; these are:

•                      granting a visa (non-citizens);

•                      entering and departing Australia (citizens and non-citizens);

•                      to determine whether a non-citizen holds a valid visa (non-citizens); and

•                      detention decision-making (non-citizens).

14.               Personal identifiers are defined currently under subsection 5A(1) of the Act:

a)       fingerprints or handprints of a person (including those taken using paper and ink or digital live scanning technologies);

b)       a measurement of a person’s height and weight;

c)       a photograph or other image of a person's face and shoulders;

d)       an audio or a video recording of a person (other than a video recording under section 261AJ);

e)       an iris scan;

f)        a person’s signature; and

g)       any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914 .

15.               The Bill will authorise the collection of personal identifiers in any circumstances where a link to the purposes of the Migration Act or the Migration Regulations can be demonstrated and the collection is not otherwise prohibited.  Examples of circumstances where personal identifiers will be collected under new section 257A, include where:

•                      a temporary visa holder, who has not previously provided personal identifiers, applies for a permanent visa to remain in Australia;

•                      a temporary visa holder, who has not previously provided personal identifiers, applies for another temporary visa to remain in Australia;

•                      a non-citizen holding a valid visa who is the subject of an investigation;

•                      a non-citizen found to be in breach of their visa conditions (eg., working when their visa does not authorise them to do so);

•                      a non-citizen whose identity, security, criminal history or immigration history, which was not known prior to visa grant, becomes of concern after visa grant; and

•                      a non-citizen who becomes of concern after arrival in Australia, recognising that individuals’ motivations and behaviour are subject to change after entry into Australia.

16.               Under subsection 257A(3), a person known or reasonably suspected to be an Australian citizen may only be required to provide personal identifiers when certain sections apply.  These sections are:

•                      166: Persons entering to present certain evidence of identity etc., which provides for the verification of the identity of persons entering Australia;

•                      170: Certain persons to present evidence of identity, which provides for persons on overseas vessels being required to present evidence of identity; and

•                      175: Departing person to present certain evidence etc., which provides for the verification of the identity of persons leaving Australia.

17.               The Bill provides for personal identifiers to be collected by one or more identification tests carried out by an authorised officer or an authorised system (paragraph 257A(5)(a)), or if another way is specified by the Minister or officer, in the way that is specified (paragraph 257A(5)(b)).

18.               The Act currently provides for a series of safeguards which apply to the carrying out of an ‘identification test’, defined in section 5 to mean “a test carried out in order to obtain a personal identifier.”  Sections 258B to 258G of the Act relate to the manner in which identification tests are conducted by authorised officers, and the information that is to be provided to a person before an identification test.  The operation of these safeguards is largely preserved by the Bill in respect of identification tests carried out by an authorised officer or an authorised system under paragraph 257A(5)(a).  These safeguards include the “general rules for carrying out identification tests” in section 258E:

a)                   must be carried out in circumstances affording reasonable privacy to the person; and

b)                   must not be carried out in the presence or view of a person whose presence is not necessary for the purposes of the identification test or required or permitted by another provision of this Act; and

c)                   must not involve the removal of more clothing than is necessary for carrying out the test; and

d)                   must not involve more visual inspection than is necessary for carrying out the test; and

e)                   unless the authorised officer has reasonable grounds to believe that the person is not a minor or an incapable person—must be carried out in accordance with the additional requirements of Division 13AB [which provides special rules for the Identification of minors and incapable persons].

19.               However, new paragraph 257A(5)(b) provides a new power for the Minister or an officer to require that personal identifiers be provided in “another way”.  This will provide the Minister or an officer with flexibility about how a person is to provide personal identifiers when required to do so, allowing the system of safeguards and legislative instruments which currently govern the collection of personal identifiers to be bypassed where an officer or the Minister authorises a different method of collection. 

20.               Removing the requirements of the ‘identification test’ safeguards will allow for quick live scans of a person’s fingers using a mobile, hand-held device. It is intended that this new power will be applied to allow such finger scans, but this restriction will apply in policy only.  It has been decided that as no facial image will be collected, and no clothing will be required to be removed, these new finger scans remove the need to maintain the safeguards which have hitherto applied to the collection of personal identifiers, such as not collecting biometrics in the presence or view of a person whose presence is not necessary.

21.               As only one to four fingers will be scanned using the mobile, hand-held device, the check will take only seconds to complete.  This compares to the current identification test procedures, which are time-consuming and resource intensive.  The procedures routinely take between 30-60 minutes per person to complete.

22.               Data will not be retained after the finger scan check has been completed.  The scans will be conducted in public, with information about the purpose of the scan, what the scan involves, and that data will not be retained after the scan is complete communicated verbally by an officer.

23.               Such finger scans will be used to conduct checks against existing data holdings to verify the identity of individuals, and to detect persons of security, law enforcement or immigration concern.  The scans will be conducted at Australia’s border, as travellers (both citizens and non-citizens) are entering and departing Australia.  The scans will also be conducted during key transactions with non-citizens who interact with the department after their initial visa grant to travel to Australia.

24.               A person cannot be compelled to provide personal identifiers under the new broad collection power in section 257A.  There is an existing limited authorisation for the use of force to conduct identification tests on persons in immigration detention in section 261AE - the Act is otherwise silent on the issue of the use of force for the collection of personal identifiers. Refusal by a non-citizen to comply with a request to provide personal identifiers may result in:

·          visa invalidity or refusal;

·          refusal to enter Australia (ie., the person would be refused immigration clearance and returned to the destination they embarked from);

·          delayed departure from Australia;

·          immigration detention.

Refusal by a citizen to provide personal identifiers may result in delayed arrival or departure as additional checks are conducted to verify identity. 

25.               Paragraph 257A(5)(b) will also remove some of the regulatory burden about the collection of personal identifiers from offshore visa applicants.  Under the current legislative framework, by operation of subsection 40(3) and subparagraph 2.04(3)(b)(ii) of the Regulations, in most instances offshore visa applicants are required to provide their personal identifiers at a place specified by the Minister in an instrument in writing.

26.               While the Minister has delegated the instrument-making power to senior departmental officers, the instrument requires updating every time a new biometrics collection location is opened, and when the addresses of specific locations change.  For example, a new instrument was required in August 2013 because the visa application centre in Abu Dhabi relocated. 

27.               The current legislative framework also provides the power to require the provision of personal identifiers directly to an overseas officer.  This power was introduced only on 1 July 2013 and was intended for situations where it is difficult or impractical to specify places in an instrument in writing for the provision of personal identifiers, for example, when collecting biometrics in the field, such as in refugee camps.

28.               The current framework will be replaced by a new policy framework that results in the same outcomes as currently apply offshore.  For example, as per current requirements, the policy will require that biometrics are required to be provided:

·          at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia, being an office with personal identifier collection capabilities;

·          at an office of Immigration in Australia, being an office with personal identifier collection capabilities;

·          at an office of an agency contracted by the department, being an office with personal identifier collection capabilities;

·          directly to an officer or to a person in a class of persons authorised by the Minister in a legislative instrument made by the Minister, who has a capability to collect personal identifiers; or

·          by any other means prescribed by the Regulations.

Under the current legislative framework, in certain circumstances visa applicants must be provided with prescribed information before their personal identifiers are collected.  The current requirements in section 258C and regulation 3.21, which set out the information to be provided to an applicant who is not providing their personal identifiers by way of an identification test will also be retained in full in the policy framework that will support the offshore collection of personal identifiers.

29.               The Bill also amends the protections for children under 15 years of age and incapable persons.  Currently the only types of personal identifiers that may be collected from children and incapable persons are a measurement of height and weight, or a photograph or other image of their face and shoulders.  These restrictions will now apply only to the collection of personal identifiers from minors or incapable persons in detention under Division 13AA of Part 2 of the Act.  Equally, a parent, guardian, or independent person will be required to be present when identifying information is collected only in respect of minors (under eighteen years of age) or incapable persons in detention under Division 13AA of Part 2 of the Act. 

30.               The consent of a parent, guardian, or independent person will no longer be required for the provision of a personal identifier by a minor (under 18 years of age) in any circumstances.

31.               Currently, the consent and presence of a parent, guardian or independent person is not required to collect personal identifiers at the border on arrival and departure under sections 166, 170 and 175.  In other circumstances, such as in the context of a visa application, the department is required to obtain consent in relation to minors and incapable persons, and is also required to ensure the presence of a parent, guardian or independent person.  The amendments will remove this inconsistency between arrival and departure provisions and the other personal identifier powers.

32.               Collecting fingerprints from minors is primarily a child protection measure aimed at preventing child trafficking/smuggling.  The circumstances in which personal identifiers will be collected from minors and incapable persons will be set out in policy, and will be limited to specific circumstances where the identity of a minor or incapable person needs to be established to a higher level.

 

Human rights implications

Extraterritorial application of human rights obligations and offshore collection

33.               The rights in the ICCPR, CRC  are expressed so as to apply to persons in Australia’s territory and subject to Australia’s jurisdiction.  The Disabilities Convention does not contain any specific clause which defines its coverage, other than article 4(5) which states that “the provisions of the present Convention shall extend to all parts of federal states without any limitations or exceptions.”  In the absence of further guidance, the relevant authority is the Vienna Convention on the Law of Treaties of 1969 (VCLT), article 29 of which states that “Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.”  The Disabilities Convention therefore clearly only applies to the territory of States Parties.

34.               In any case, the Government’s and the Department’s long-standing position is that making a decision to issue or cancel a visa (and the processes leading up to that decision) do not involve the Minister or a delegate exercising jurisdiction over the affected individual, particularly if the person was outside of Australia’s territory.

35.               The policy intent for the offshore collection of personal identifiers is that the existing legislative safeguards will be preserved in policy, but by definition the offshore collection of personal identifiers will take place outside Australia’s territory and, as discussed in the previous paragraph, in circumstances where people are not subject to Australia’s jurisdiction.

 

The following human rights are engaged:

The right to freedom from unlawful or arbitrary interferences with privacy

36.               Article 17 of the ICCPR provides that:

1.       No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2.       Everyone has the right to the protection of the law against such interference or attacks.

37.               The UN Human Rights Committee has recognised the measures regulating migration are in accordance with the aims and objectives of the ICCPR, stating that “The Covenant does not recognize the right of aliens to enter or reside in the territory of a State party.  It is in principle a matter for the State to decide who it will admit to its territory […] Consent for entry may be given subject to conditions relating, for example, to movement, residence and employment” (CCPR General Comment 15, 11 April 1986).

38.               The Committee goes on to say, however, that “in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise.”

39.               Pursuant to Article 17(1) of the ICCPR, an interference with an individual’s privacy must have a lawful basis.  The interference with privacy will be lawful at domestic law by virtue of the legislative amendments in this Bill.

40.               In addition to requiring a lawful basis for limitation on the right to privacy, Article 17 prohibits arbitrary interference with privacy.  Interference which is lawful may nonetheless be arbitrary where that interference is not in accordance with the objectives of the ICCPR and is not reasonable in the circumstances.  The United Nations Human Rights Committee has interpreted the requirement of ‘reasonableness’ such that any interference with privacy must be proportional to the end sought and be necessary in the circumstances.

41.               The department’s collection of personal identifiers, which is sensitive information, are lawful under the Australian Privacy Principles contained in the Commonwealth Privacy Act 1988 , and will be subject to requirements in Part 4A of the Migration Act, “Obligations relating to identifying information”, which provides for a range of rules and offences relating to the access, disclosure and use of identifying information.  This is consistent with the United Nations Human Rights Committee General Comment 16 in which the Committee states that the gathering and holding of personal information using information technology must be regulated by law and that effective measures must be taken to ensure that the information collected is not accessed by persons who are not authorised by law to receive, process or use it.

 

Consolidation

42.               The proposed changes consolidate the various situation-specific personal identifier collection powers into one broad collection power to collect personal identifiers for the purposes of the Act or Regulations in new section 257A.  While this broadens the circumstances in which personal identifiers may be collected, there is still an overarching requirement that the personal identifiers be collected for the purposes of this Act or the Regulations.  The restriction on the privacy of persons whose information is collected is aimed at the legitimate goal of ensuring the integrity of Australia’s borders and visa system more generally, including by detecting the ingress, egress, and change in status of persons of concern, both Australians and non-citizens.  The use of personal identifiers for this purpose is widespread throughout the world.  In addition to an identity check, security, law enforcement and immigration checks may also be conducted.  This measure enables the department to identify non-citizens who:

·          are attempting to represent themselves as a particular person, but who are someone else;

·          are working in breach of their visa conditions;

·          have remained in Australia beyond the period authorised by their visa, and who have remained in Australia unlawfully; and

·          have come to the attention of law enforcement while living in the Australian community.

In light of the Committee’s views outlined above, the use of personal identifiers in the migration context is clearly aimed at a legitimate purpose within the framework of the ICCPR.

43.               Whether the measure is reasonable or proportional to the purpose to be achieved requires an assessment of the risk to be mitigated.  The most obvious risk in the current heightened security environment is extremists seeking to cross borders, both into and out of Australia, to engage in terrorism.  The collection of personal identifiers enables the department to conduct identity, security, law enforcement and immigration checks that are of higher integrity than checks possible using biographic details, such as name and date of birth, alone.  However, reducing the risk of terrorism is only one of the positive benefits of these measures, with potential integrity benefits to the migration programme generally.

44.               The right to privacy is not absolute.  The department already collects fingerprints as permitted under the Act in other circumstances.  While the Bill will expand the circumstances where an individual will be required to provide personal identifiers, this is justifiable to detect persons who have previously arrived in Australia, and whose identity, law enforcement or immigration histories have not been checked to a higher level that is now possible using personal identifiers.

45.               Further, in light of threats from persons seeking to enter, depart or remain in Australia undetected as impostors, or using fraudulent documents to conduct criminal or terrorist activities, the ability to collect and use personal identifier/s, particularly fingerprints, is necessary, reasonable and proportionate in order to achieve the legitimate objective of accurately identifying persons and of protecting Australia and its national security interests.

46.               The safeguards in sections 258B to 258G will continue to apply for identification tests conducted under paragraph 257A(5)(a), providing considerable protections to persons subjected to these tests, including specific provisions relating to privacy in section 258E.

47.               Considering the gravity of the risks and the importance of an orderly migration system to Australia, the increased collection powers are proportionate to the legitimate purpose of protecting the Australian community and the integrity of the migration programme, with an acknowledged negative impact on privacy in circumstances where a certain amount of identity verification is expected weighing favourably against the significant benefits.  This measure is compatible with Article 17 of the ICCPR.

 

Bypassing of safeguards in certain circumstances

48.               The Bill provides for personal identifiers to be collected by one or more identification tests carried out by an authorised officer or an authorised system (paragraph 257A(5)(a)), or if another way is specified by the Minister or officer, in the way that is specified (paragraph 257A(5)(b)).  If another way is specified by the Minister or officer, the safeguards provisions in sections 258B to 258G are not engaged.

49.               One element of the policy intent for paragraph 257A(5)(b), as described above, is that this flexible new power will be used to implement the use of small, mobile, hand-held electronic scanners to collect an image of a person’s fingers (maximum of four fingers), allowing quick checks against established databases of persons who have come into contact with authorities and provided fingerprints by another route, including under another provision under the Migration Act.  This is a non-intrusive method, similar to methods used in several other countries around the world, yet effective in detecting imposters and persons who are of concern.  Scanned finger images will be stored in the hand-held device, for only as long as is necessary to conduct the required checks, and return results to the hand-held device.  Data will be transmitted via secure Commonwealth-endorsed standards.  No data will be retained in the hand-held device, or in departmental systems following the scan.

50.               Where a match occurs, only minimal information will be displayed on the hand-held device to indicate a match/no match has occurred.  A unique identifying number will be visible, which will enable departmental officers to obtain biographic and other relevant details from data holdings to determine the most appropriate course of action.  Each match will be assessed on a case-by-case basis.

51.               In these minimally invasive circumstances, the bypassing of the safeguards that apply to more invasive methods of collection is reasonable.  The benefits from this additional layer of checking are clear and in certain circumstances could be very significant, while the imposition on an individual’s privacy is minimal.  As such this measure is compatible with Article 17 of the ICCPR.

52.               The current policy intent is that the flexible new power in paragraph 257A(5)(b) will be used  in these circumstances, which are compatible with Article 17 of the ICCPR.  However, the power in paragraph 257A(5)(b) is extremely broad, but only those personal identifiers listed in subsection 5A(1) are authorised to be collected without further legislation.  However, compliance with Australia’s international obligations is to be measured by what Australia does in toto by way of legislation, policy and practice, and the Government’s view is that this is the most appropriate way to implement the new fingerprint scanning measure and to provide appropriate flexibility into the future.

 

The right to equality and non-discrimination

53.               Article 2 of the ICCPR provides that a party to the Covenant “respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

54.               The proposed amendment expands the circumstances where personal identifiers will be able to be collected.  The amendment does not target any particular person or group based on any criteria, such as type of visa, although there will be some risk-based and intelligence-based targeting.  To the extent that these amendments single out non-citizens, this is permissible in that immigration controls remain within the remit of sovereign states.  The UN Human Rights Committee stated in General Comment 18 that:

The Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.

55.               The object of the Migration Act is to ‘regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’.  In that sense the purpose of the Migration Act is to differentiate on the basis of nationality between non-citizens and citizens.  As noted above, the UN Human Rights Committee has recognised in the ICCPR context that “It is in principle a matter for the State to decide who it will admit to its territory.”  (CCPR General Comment 15, 11 April 1986).

56.               The authority to collect personal identifiers to establish or verify a person’s identity will provide a higher integrity check than is currently possible using document-based measures, such as a passport check.  This higher level of integrity will result in higher assurance of identity, as well as provide for security, law enforcement or immigration checks to be conducted to detect persons of concern who have not been identified previously because of the incremental roll-out of the department’s biometrics programme.  While this will by the nature of the portfolio’s work affect non-citizens more than it will affect citizens, this is for the entirely objective and proportionate reason that it is the presence of non-citizens that is the primary object of the Migration Act.

 

The right to physical integrity and freedom from cruel, inhuman or degrading treatment

57.               Article 7 of the ICCPR provides that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”  Article 9 provides that “everyone has the right to liberty and security of person.”

58.               Under a new power in paragraph 257A(5)(a), personal identifiers will be collected by one or more identification tests carried out by an authorised officer or an authorised system.  The procedures for carrying out an identification test are set out in sections 258B to 258G, and these will continue to apply.  This includes section 258F, which provides that nothing in the Migration Act authorises the carrying out of an identification test in a cruel, inhuman or degrading manner, or in a manner that fails to treat a person with humanity and respect for human dignity.

59.               Paragraph 257A(5)(b) provides that personal identifiers may be collected in another way specified by the Minister or officer, which means that the procedural provisions in 258B to 258G (which apply to identification tests) do not apply.  While this means that the section 258F prohibition on conducting an identification test in a cruel, inhuman or degrading manner, or in a manner that fails to treat a person with humanity and with respect for human dignity will not apply, there is no intent to implement anything in policy under paragraph 257A(5)(b) which would approach the level required to breach these rights, and policy guidance provided to officers will reflect that fact.  Other than in immigration detention there is no power to compel the provision of personal identifiers - the refusal to provide them will result in outcomes such as visa refusal or being refused entry to Australia, or further identity checks in the case of an incoming citizen, but will not result in the use of force.

60.               Where the department collects fingerprints, it primarily uses scanning technology, which involves placing fingers and/or thumbs on a small, mobile scanning/capture device.  That is, an image is captured of a person’s fingerprints as they place their fingers on the flat surface of a scanning device.  This technology is non-invasive, and requires no physical contact with a departmental officer.  There is no physical contact involved other than the placing of fingers/thumbs on a flat scanner surface.  The collection process takes seconds only.

61.               In a small number of cases, if a scanner is not available, fingerprint images may need to be collected via the ‘wet print’ method, which involves a person’s fingerprints being rolled in ink, and an image of the prints being pressed onto paper.  This method, again, is non-invasive of a person’s body, and would be used in a very small number of cases only where the scanned method is not available or viable.

 

Rights of the Child

62.               The Bill removes the limits on collection of personal identifiers from minors - collection from children under 15 years will now be possible, and the requirement for the consent and presence of a parent, guardian or independent person will be removed, with the exception of minors in immigration detention, where collection will still require the presence of a parent, guardian, or independent person.

63.               Collecting personal identifiers, particularly fingerprints, will permit a higher level of integrity in identifying minors overseas where known cases of child smuggling and trafficking reveal higher risk.  Fingerprints provide a unique capability to accurately identify individuals that is not possible using a facial image, particularly if the person is a minor.  Unlike a facial image, which is subject to considerable change as a person ages into adulthood, fingerprints are relatively stable throughout a person’s lifetime.  As the utility of collecting personal identifiers rests on a foundation of accurate identification, fingerprints are a significantly higher integrity identity assurance measure than a facial image.

64.               The amendments will not introduce universal biometric collection for all minors.  Only a small number of minors will be affected by the amendments in specific circumstances, including:

·          offshore to protect minors from people smugglers and traffickers, particularly from minors who are assessed as being at higher risk of trafficking, especially in certain higher risk locations;

·          on entry and departure at Australia’s border in certain circumstances where a minor is identified as of concern; and

·          applicants from the Refugee and Humanitarian caseload, who rarely have identity documentation other than that provided through the Australian visa system.

65.               Australia works closely with international partners, particularly those in the Five Country Conference (FCC) arrangement, which includes sharing anonymised fingerprint data to strengthen national security and visa integrity.  These partners include the United Kingdom, which maintains a threshold for fingerprint collection of over five years of age.

66.               Where a minor is known to Australian security or law enforcement agencies, or to international partners, the likely small number of cases where a minor would be required to provide personal identifiers without parental consent would be justified by the potential extremity of the risk in failing to utilise available data to identify a minor suspected of involvement in terrorism-related activities.

67.               When section 261AL was drafted in 2003, the age of 15 years was considered an appropriate starting age to collect fingerprints.  The Government no longer considers 15 years of age to be appropriate for a number of reasons:

·          child smuggling/trafficking cases where minors have been  brought into Australia, both with and without parental consent, as part of a family unit of which they are not a member;

·          recent terrorist-related incidents that have focussed attention on the involvement of minors in terrorist activities in conflicts in the Middle East and Africa;

·          the age limit in the Migration Act is inconsistent with all other  Five Country Conference partners;

68.               Like Australia, both the United States and the United Kingdom face the return of potentially radicalised minors after participating in conflicts in the Middle East and elsewhere.  While it is an uncomfortable proposition that a minor may be capable of involvement in terrorist activities or extreme violence, the conflict in the Middle East has provided evidence of the involvement of children.  Through the FCC data sharing arrangements with both countries, Australia would be able to access fingerprint-based records of minors who may already be known to the security agencies of either country.  Where a minor is suspected of involvement in a terrorist activity or serious criminal activity, fingerprints would enable searches of FCC partner databases and Australian law enforcement data holdings.

69.               The department intends to set the age of collecting fingerprints as a matter of policy, which would enable greater flexibility to respond to emerging risks.  Collecting fingerprints from minors aged 10 years and above would enable matches with Australian law enforcement data holdings, while collecting fingerprints from minors aged over five years would assist to identify minors known to international partners.

70.               The Refugee and Humanitarian caseload is considered high risk from an identity perspective, with children often the most vulnerable, as documents establishing identity are either non-existent or unreliable from their home country.  Identity certainty provides the basis of an individual’s access to services and protection under Australian law. 

71.               Effectively establishing identity is essential in reducing the risk to vulnerable people, especially children, from the activities of people smugglers and traffickers.  There have been many cases of children being moved through the Australian border without the consent, and in some cases, without the knowledge of one or more parents.  In some cases, this is related to child custody issues; in others it is an attempt to get one member of a family onshore and in a position to sponsor other family members.  Family composition is difficult to establish and the addition of non-genuine family members, particularly minors, is known to occur.  In some cases, minors have been substituted after a visa application to Australia has been granted; in some cases the substitution has been done for monetary benefit.

72.               The Bill will also address the current problem of a person claiming to be a minor under 15 years of age to avoid identity, security, law enforcement and immigration checks that would otherwise apply.  Currently the department is not authorised to collect fingerprints from a person claiming to be under 15 years of age.  The department is aware of cases where the current age restriction in the Act has been used to prevent collecting fingerprints.  This circumvents the purpose of conducting fingerprint checks, which is to accurately identify individuals and detect persons of concern.  Collecting fingerprints is the most reliable method to accurately ensure that the right person is subject to action, and not another person who is misidentified.

73.               As stated above, these amendments will address a known vulnerability in Australia’s security and immigration framework on a case-by-case basis, based on risk and intelligence.  The department’s intent is that only a small number of minors would be required to provide fingerprints.  Departmental staff will be given clear policy guidance about the restrictive use of fingerprint checks for minors.

74.               Article 2(2) of the Convention on the Rights of the Child (CRC), obliges Australia to “take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.”

75.               There may be circumstances where the extremist beliefs of a child’s parents lead to the child being subject to the expanded personal identifier provisions in this Bill.  The Government’s view is that this is a permissible differentiation, as it is based on an objective criterion, and is aimed at the legitimate purposes of protecting the Australian community and preventing terrorism.  It is intended to be used only where there are indications that this concern is relevant and proportionate to the purpose for which it is implemented.

76.               Article 3(1) of the CRC requires that the best interests of the child are treated as a primary consideration in all actions concerning children.  While the best interests of the child are a primary consideration, they are not the primary consideration, and may be outweighed by other countervailing considerations including the protection of the Australian public by actions aimed at identifying persons of concern before being granted a visa to travel to Australia, and interdicting persons of concern at Australia’s borders.  Depending on the circumstances, it may be very firmly in a child’s best interests for greater scrutiny to be applied, particularly where there is suspicion they are being trafficked or are travelling overseas to join extremist groups.  In other circumstances, the best interests of the child may be overruled by the security of the Australian community.  In any case concerning a child, strict policy guidance will be provided as to these considerations.

77.               Article 3(2) of the CRC obliges Australia to “ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents”.  The intent is that the consent and presence of parents would only be bypassed where necessary - there are circumstances, for example where the person who appears to be a child’s parent is in fact trafficking the child, where consent may be refused for reasons which undermine the very purpose of the legislation and the best interests of the child themselves.

78.               Article 16 of the CRC is drafted in similar terms to Article 17 of the ICCPR and prohibits the arbitrary or unlawful interference with the privacy of the child.  The considerations are similar to those outlined in the general privacy discussion above.  Policy guidance will include provision for the careful engagement with children, taking their vulnerability into account.

79.               The Government’s view is that these legislative measures combined with the stated policy intent are proportionate to the objectives of protecting the security of the Australian community, preventing terrorism, preventing the trafficking of children and maintaining the integrity of the migration system, particularly because they are intended to be used only in limited circumstances, where intelligence or risk analysis indicates there is a particular need.  The Government’s view is that these measures are necessary because biometric information allows a higher level of certainty in establishing the identity of children than is possible with documents alone.

 

Rights of Incapable Persons

80.               Australia is a party to the Convention on the Rights of Persons with Disabilities (the Disabilities Convention).  The Disabilities Convention provides for the same rights as those outlined above, including Article 22, which provides for an individual’s privacy in similar terms to the ICCPR; Article 14, which provides for liberty and security of person; and Article 15, which provides relevantly for freedom from cruel, inhuman or degrading treatment.

81.               It is important to note at the outset that the Department understands that all persons with a disability are not incapable; any person with a disability unrelated to their capability to understand and consent to the collection of personal identifiers will be subjected to the main personal identifier collection provisions (subject to any appropriate adjustments which may be necessitated by their disability). 

82.               The current restrictions for incapable persons are similar to those which currently apply to minors. Section 261AM of the Act restricts the collection of certain personal identifiers, including fingerprints, from incapable persons; only a facial image and measurements of height and weight are currently authorised to be collected from incapable persons.  When these authorised personal identifiers are collected under sections 40, 46, 188 or 192, the consent and presence of a parent, guardian or independent person is required.  However, under sections 166, 170 and 175, these authorised personal identifiers can be collected from incapable persons at the border without the consent of a parent, guardian, or independent person.

83.               The amendments will provide for a new consolidated power under section 257A to collect personal identifiers from persons, including incapable persons and incapable persons who are minors, without the consent of a parent, guardian or independent person, on a case-by-case basis.  These changes address the current inconsistencies in the Act, and provide a broader power to collect personal identifiers from incapable persons in circumstances which are not currently allowed.

84.               The policy considerations relating to incapable persons are similar to the concerns relating to children, as outlined above.  There are cases of mentally incapable people being exploited as suicide bombers in conflicts in the Middle East, and in circumstances where an incapable person is unable to speak on their own behalf, in circumstances where there is an indication of trafficking or exploitation it may be necessary to gain an additional level of identity assurance before allowing travel from or entry to Australia, or a change in visa status.  The intent is not to introduce the universal collection of personal identifiers from incapable persons, but to provide the flexibility to do so where intelligence or risk assessments indicate that there is a particular concern.  Policy guidance will be issued to departmental officers to ensure that they exercise their discretion appropriately.

85.               Article 18 of the Disabilities Convention provides for the recognition of the rights of persons with disabilities to liberty of movement.  The Australian Government recognises these rights, but on the explicit understanding that the Disabilities Convention does not create a right for a person to enter or remain in a country of which he or she is not a national, where these requirements are based on legitimate, objective and reasonable criteria.  The personal identifier provisions will not be discriminatorily applied to incapable persons (or other persons with a disability); they will be applied on the same bases as to persons without a disability.

86.               Insofar as the amendments in the Bill limit the above-mentioned human rights of incapable persons, including minors, the considerations are not substantially different from those outlined above.  The objectives of ensuring the security of the Australian community, ensuring the safety of incapable persons, and ensuring the integrity of the border and migration programme are all legitimate within the framework of human rights law.  Given the policy settings that will inform the use of the new consolidated powers, the new provisions are reasonable and proportionate to the objective they seek to achieve, and any adjustments or special considerations to accommodate and ensure the dignity of persons with a disability will be implemented in policy and practice.  As such, the amendments, when considered with the implementing policies as discussed, are compatible with the rights of disabled persons as outlined in the Disabilities Convention and the other human rights instruments outlined above.

 

 

Conclusion

87.               Accurately establishing identity supports the safety of the Australian community, the safety of vulnerable people, and the integrity of the migration system.  These measures are aimed squarely at furthering these legitimate goals.  The Government’s view is that, when combined with the intended policy settings, the measures in the Bill are reasonable and proportionate to the objectives they seek to achieve.  The Government’s view is that these amendments are compatible with human rights, and to the extent that the broad powers introduced could enable the implementation of policies that go beyond those currently envisaged, the intention is not to implement policies that are inconsistent with human rights.

 

The Hon. Peter Dutton MP, Minister for Immigration and Border Protection