Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Immigration, Integration and Citizenship) Share this | Hansard source

The Migration Legislation Amendment (Information and Other Measures) Bill 2007 is not of itself controversial, although the delay in the bill reaching the parliament certainly is of some concern. The bill is an attempt to correct previous legislation where the government had in fact overreached from where it intended to be. To date, the relevant migration legislation, since amendments were carried in 2004, has had a level of privacy protection much higher than the levels provided by the Privacy Act. This, in turn, has resulted in some concerns which the Minister for Immigration and Citizenship outlined in his second reading speech.

In his second reading speech, the minister raised some very serious concerns about consequences which would appear to have been entirely unintended by all members of parliament when the amendments were carried early in 2004. I was not here at the time; it occurred during the previous parliament. The provisions imposed criminal penalties when privacy information about personal identifiers was handed over. I quote from the minister’s second reading speech:

My department’s ability to continue normal working practices is being seriously hampered and in some instances activities have been discontinued as a result.

The minister continued:

... my department can no longer disclose photos and signatures to investigate and prosecute some Migration Act offences. My department can also no longer disclose photos and signatures to law enforcement agencies or the Commonwealth Director of Public Prosecutions for the prosecution of crimes that are not immigration related.

As all members would understand, it can very often be the case that if someone has been involved in drug trafficking or people smuggling or in a number of other offences where their personal identifiers will be held by the Department of Immigration and Citizenship, they may well have committed a number of offences and the most serious of those offences may not be the offences contained within the migration legislation itself but may be offences contained in other legislation. A situation where those personal identifiers cannot be passed on carries a number of problems.

The personal identifiers I am referring to are ones defined as signatures, photographs, height and weight measurements, fingerprints, iris scans and audio or video recordings. All of these personal identifiers can be essential in prosecuting—for instance, in establishing that you have the right person or when there is an aggravated approach to the offence by the DPP because it is believed that somebody is in fact a reoffender. For example, some of the people involved in illegal fishing are treated very differently from how they were treated on the occasion of their first offence when they are caught a second time. So the capacity to be able to use that information is very important.

The fact is that a standard of privacy way beyond that required in the Privacy Act was inserted in error in 2004. It is a mistake that obviously was not known to the parliament at the time; otherwise, one would hope the government would not have proposed it and one can guarantee the opposition would not have supported it. So it has to be corrected and this legislation goes some way in doing that.

There are also some other things that were entirely unintended. The best example of that I can give is when you wanted to access your own movement records. The only way you could do that up until this amending legislation was introduced was to FOI your own movement records. Certainly, it is a pretty big call to say that there are privacy concerns about whether or not you can access your own data. So it is important that these issues be corrected.

There is one very serious public policy concern that I do not think for one moment is something that falls at the feet of the department or at the feet of the current minister—he has not been minister for long and we are already dealing with this—but it does certainly raise concerns for the way the government has handled a mistake of this nature. We are talking about some serious offenders. We heard an attempted vigorous attack on me in question time yesterday by the minister. I certainly agree with what he said about the real dangers and problems of people smuggling. I do not agree with his character assessment of me—and that is probably no surprise—but I do agree with the real concerns and dangers of people smuggling.

People have their lives put at risk on the high seas. We want to make sure that the people responsible are prosecuted. We want to do everything within our capacity to make sure that, where charges can be laid, they result in convictions. In the same way as where the smuggling does not involve the movement of people but involves the smuggling of drugs or other illicit substances, we want to make sure that people can be charged and that those charges lead to a successful prosecution and conviction, with the full force of the law brought down on those people who are either putting the lives of some desperate people completely at risk on the high seas or pretending that the Australian border just does not matter, whether they are plundering our fish stocks or bringing illicit substances into our country.

What does concern me is the way the Howard government has dealt with this issue. We are now in 2007; the mistake was made in 2004. There can be a lag time in it coming to light, but from the information that is contained in the Bills Digest, prepared by the Parliamentary Library, the unintended consequences of these privacy provisions came to light in late 2005. That is a very long time for this parliament and for this government to turn a blind eye to a real concern about the capacity of the DPP to engage in successful convictions.

As I said, I do not put the blame for this at the feet of the department and, given that he has only been minister for a few months, I do not think it is fair to put the blame on the current minister. But I have to say to the government that the unintended consequences came to light in 2005 and it waited until quite a few weeks into 2007 before bothering to do anything about it. There are a whole lot of words in the final question in question time yesterday about how seriously we take incursions across our border that could be quoted back—and probably deserve to be quoted back—at the government as a whole. We are talking about a complaint from the DPP, no less, saying that there are occasions now where we have people who have come into Australia unlawfully, people who may have been involved in the drug trade or in other sorts of smuggling operations or in illegal fishing, and we cannot actually convict them because, with the best will in the world, a mistake—as far as I can tell, a genuine mistake—was made by this parliament at the beginning of 2004.

That mistake came to light in late 2005—and I accept there needs to be time for drafting—but why on earth we went through the whole of the last calendar year and waited until now to correct this anomaly is a complete mystery to me. All I ask of the government—and I do not think it is an unreasonable ask—is that, if it turns out that this amending legislation does not fix the problem, for heaven’s sake get in here and fix it. I do not want to be in a situation where people breach our border unlawfully and there is nothing we can do because the government did not bother, yet for the whole of 2006 that was precisely the situation that we were in.

Despite the lack of patrol vessels, despite all the different problems they have and how illegal fishing has been allowed to run rife—despite all of those problems—they want to get up here and thump the lectern. They do not thump this one—I hope it is not too long before they do! They thump that lectern there and want to make all the allegations about people being too relaxed and not taking border protection seriously. Well, step 1: if there is a loophole that is operating to the benefit of people who breach the border, fix it. Do not let a 12-month period go past while it is being ignored. That is precisely what has happened for the last 12 months. What was the breach? Of all things, it was on the basis of privacy—on the basis of a right to privacy for the drug smuggler, the illegal fisher or the people smuggler—that this was allowed to go on.

I do not want to believe—and I think it would be an unfair slur against the government to claim that—that was the right to privacy they were asserting. I think it was quite simply an issue of neglect and incompetence; until you get to an election year, these issues do not become a priority. We are in an election year now and all of a sudden it is a matter of saying, ‘Quick, we’d better listen to what the DPP has been saying.’ I have no doubt that when the DPP raised these concerns work would have begun in the department immediately to do something about it. The problem is that the department on its own cannot change the law. It actually takes an elected member of parliament to bother to translate that into legislation and to stand up here and do something about it. So, why the delay, I do not know. But the fact that we are here now debating the legislation is something that I am glad about.

The bill has to deal with parallel changes to four other pieces of legislation—the Fisheries Management Act 1991, the Torres Strait Fisheries Act 1994 and the Environment Protection and Biodiversity Conservation Act 1999, in addition to the Migration Act. That is significant. It appears that what we have before us is a fix of that concern. We have an attempt here to fix the unintended consequence of the 2004 amendments. We have proposed legislation which allows the department to disclose to a person their own movement records, getting rid of the bizarre situation where somebody had a right to privacy against themselves. As anomalies go, that was a creative one—I will give it that.

We have an alteration of the definition of ‘fisheries detention offence’ to include new fisheries offences which were introduced in 2006, to ensure that those arrested for committing the new offences receive an enforcement visa on their arrival in Australia. The reason we have the mirror provisions that I referred to before is that, even though somebody may be initially detained under a series of different offences, once they reach Australia and are placed in immigration detention you need to make sure that once those identifiers are taken they are able to be accessed for all the different pieces of legislation.

Bringing everything in line with the Privacy Act is good. Getting rid of some exemptions that were at best probably described as ‘bizarre’—some of those exemptions on having to FOI your own details—is good. There are some different issues of detail; some of those were already referred to by the minister in the second reading speech and there is no reason to go through them again. The government has brought forward legislation that needs to be brought forward.

One day I might find out why there was a delay of 12 months. To find the answer I may have to make a trip to Rome or to Beijing to ask the person responsible. I am not sure whether that information will ever become available. Certainly, it reflects extremely poorly on the government to have shown a level of neglect on, of all things, this issue when it actually came to light from a specific complaint from the DPP. The opposition supports the legislation.

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