Richard Marles (Corio, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | Hansard source

With your indulgence, Mr Deputy Speaker Kelly, before I begin my contribution I might acknowledge Deborah Seccombe, who is sitting in the advisers box. Deborah is an intern with me from the Lachlan Macquarie Institute and is doing a great job this week. The Lachlan Macquarie Institute are fantastic in the work that they do and they have always provided me with wonderful interns.

Having taken that indulgence, I speak on the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015. The purpose of the bill is to consolidate, simplify and enhance provisions within the Migration Act relating to the collection of biometrics at Australian border points and the processing of visa applications.

The collection of personal identifiers at the border is an important part of Australia's national security framework. Of course it is important that we know precisely who is entering Australia and leaving Australia at any given time. Of course it is important that we know exactly who is applying for, and being provided, a visa to live and work in Australia. And of course preventing identity fraud is unambiguously a good thing. The collection of biometric information allows us to do all of this. However, this must be done in a way that is balanced with a person's right to privacy. It must be done in a way which respects a person's civil liberties. And we must ensure that people are treated with dignity in the process of providing personal information. This is particularly important when we are considering minors and vulnerable people.

Labor is concerned that the bill in its current form may not get this balance right. Questions raised by Labor during departmental briefings have not, in our view, been completely answered. I note that an inquiry into this bill by the Senate Legal and Constitutional Affairs Legislation Committee is currently underway and that a number of submissions to the inquiry have expressed concern that the bill does not currently provide adequate safeguards with respect to personal privacy and dignity. In addition, there appear to be inconsistencies between what has been presented to the Senate inquiry and what has been provided to us during departmental briefings. Accordingly, Labor will not oppose this bill in the House but will reserve our position in respect of this bill and any amendments that we may make in the other place following the outcome of the Senate inquiry, which is due to report on this bill on 5 June.

The majority of Australian citizens will not be impacted by this bill and will not be required to provide additional biometrics on entering or departing Australia. The foreign fighters act authorised the Department of Immigration and Border Protection to conduct security checks, not law enforcement checks, on Australian citizens. Customs officers at our airports may already use fingerprint checks to conduct a security check of an Australian citizen who 'fails' the automated clearance through passport SmartGate because their photo does not match the facial scan, their passport is listed as stolen or missing, they trigger an alert as a person of interest or they match a profile. Currently these triggers only lead to paper based verification of identity. The intent of this bill is to enhance the ability of Department of Immigration and Border Protection to verify identity by allowing the use of biometrics to conduct a 'higher integrity identity and security check of citizens' than is currently possible with the paper based system.

The main change this bill seeks is to provide the legislative ability for Customs officers to use mobile hand-held fingerprint scanning devices in the collection of personal identifiers in the circumstances that I have just described. I reiterate that it is important to note that the foreign fighters act, passed last year, already provides the department with the authority to collect fingerprints. The information thus collected will enable the ability to check this information against that held in the databases of organisations such as the AFP, ASIO and ASIS and overseas organisations such as the FBI and the CIA.

A key question for Labor has been whether, as stipulated in this bill, the biometric information gathered in this way is or is not retained, and is only used for identity verification purposes. The legislation clearly states that the Department of Immigration and Border Protection will not retain Australian fingerprints and facial recognition scans when obtained in this way. I note that this issue has been raised in the current Senate inquiry. In the course of that inquiry, it seems to us that ambiguities have arisen in respect of this question. Labor obviously believes that this is a critical question and one that must be clarified.

In respect of noncitizens who apply for visas, the bill provides Customs with the flexibility to obtain all the legislated forms of biometric information, such as facial scans and fingerprints, in all circumstances relating to noncitizens and all visa applications. It obviously does not mandate that all of that information be obtained, but it provides the flexibility for that to occur. As I stated earlier, it is vital to our security that we do know exactly who is applying for, and being provided, a visa to live and work in Australia. Biometric information allows us to do this accurately and efficiently. It is important to note, however, that, in the case of the biometric information collected from visa applicants, this information will be retained by the appropriate authorities. So, again, I reiterate our concern that this be done in a way that safeguards personal privacy and civil liberties, and Labor will be keenly awaiting the advice of the Senate committee inquiry on this point.

The bill will allow all biometric information that can be taken from an adult to also be taken from a minor or incapable person without the requirement of consent or the presence of a parent or guardian. This is usually done to ensure the welfare of a minor, and often it may well be that the relationship between a child and the adult with whom they are travelling is sought to be tested by the gathering of this information. It is also worth noting that this can, in a limited way, already occur right now through the collection of a facial scan on presentation of a passport through SmartGate technology at airports. That does not require, obviously, the consent of a parent right now. The purpose of the changes in this bill is to enhance the ability of law enforcement to prevent the arrival or departure of known radicalised minors but also, importantly, to prevent children being taken from the country without the appropriate parental consent. There have also been cases of child trafficking where minors have been brought to Australia as part of a family unit of which they are not a member.

The Department of Immigration and Border Protection has advised that removing the age restriction on seeking consent in these circumstances is appropriate for a number of reasons, and we understand those. Firstly, the use of mobile hand-held fingerprint scanners has been put to us as a form of collecting fingerprints which is apparently not intrusive. Secondly, it has been put to us that it will enhance the department's ability to tackle child-smuggling cases. Thirdly, the age limit that is being proposed is consistent with all the other Five Country Conference partners, namely New Zealand, the UK, the US and Canada. Finally, the current age limit has been used by people to avoid identity, security, law enforcement and immigration checks by claiming to be 15 years old or younger. I have been advised that people-smuggling boat crews have used this claim to avoid fingerprinting in the past. Removing the age restriction will prevent this from happening in the future. We understand the points being made by the department in giving us that advice.

In its submission to the Senate committee inquiry, the Law Council of Australia has recommended the bill should include safeguards 'to ensure adequate protection of all people affected by the legislation, including vulnerable groups', such as minors. If minors' identity and their relationship with the person they are travelling with is to be tested without the consent of their parents, then it is critical that appropriate measures be taken to ensure the dignity and the safety of these children in that process. For example, it would appear to me that it is appropriate that female officers be involved in undertaking these processes when we are talking about girls; it seems to me that it would be appropriate that people with appropriate skills in working with minors are those who are involved in performing this work; and it seems to me also appropriate that there be a rigorous system of oversight of how these processes would be undertaken. All of these issues are being dealt with and discussed in the current Senate committee inquiry into this bill. Again, Labor will await the outcome of that report with keen interest in terms of informing our approach to this legislation in the other place.

Finally, I take this opportunity to note that immigration detainees are expressly not affected by the substantive changes which are contained in this bill, and that is an important point to note.

In summary, Labor support the measures to enhance the ability of our Customs personnel to use biometric information as part of our robust national security system; but, as I indicated earlier, Labor have a number of questions and concerns about the bill in its current form. We will reserve our final position in terms of how we deal with this bill in the other place until we have heard the outcome of the Senate committee inquiry, but Labor will not be opposing this bill in the House.

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