Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

I rise to speak on the Migration Amendment (Border Integrity) Bill 2007. At the end, I will seek leave to have my speech on the Migration Amendment (Review Provisions) Bill 2006 [2007] incorporated in Hansard. I foreshadow that at this point. The reason for that, of course, is that these bills are cognate. I was intending to speak to both of them but I did not want to then be constrained to 10 minutes apiece given that I only have 20 minutes for my speech. I would rather spend a bit more time on the border integrity bill first.

The purpose of the amendments in the Migration Amendment (Border Integrity) Bill 2007 to the Migration Act 1958 is to enable certain persons with an eligible passport to choose either an automated system of clearance or a clearance officer in immigration clearance and to define who may use an automated system. In addition, the bill seeks to amend the Migration Act so that a special purpose visa may cease at a time specified by the minister. Currently the visa would cease at midnight on the day of the ministerial declaration. The bill remedies the current situation where a declaration is made by the minister that a noncitizen should not remain in Australia but action to detain that person for removal cannot occur until midnight on the day on which the declaration is made. Clearly, that is a problem that needs a remedy. Labor will be supporting the bill and those matters that are contained within it that go to the various schedules.

I turn to identity verification for passports or what is probably now well known as SmartGate. The bill allows for the expansion of the government’s voluntary SmartGate system to all Australian citizens and selected noncitizens provided they hold an eligible e-passport. While Labor will be supporting the bill, as I have said, we are not convinced that the SmartGate system as proposed will adequately deliver on those aims.

The use of SmartGate is dependent on having an eligible passport—in other words, an e-passport. The e-passport was launched on 25 October 2005. The biometrically enabled e-passport, as some would know, has a microchip embedded in the centre page which contains the digitised facial image and personal details of the passport holder. The microchip can be read electronically by facial recognition technology. The introduction of e-passports internationally will continue to assist, clearly, in streamlining international travel.

I would say at the outset that there is much support for the concept. The automated system will temporarily store the data which is electronically read from the embedded information stored on the microchip in the e-passport. That is the broad process which will be utilised. That is only while it is used to process the relevant passenger. The information is destroyed shortly afterwards. The automated system will not collect—that is, permanently store—the relevant personal identifiers from these passports.

The government moved amendments to the bill in the other place to avoid an unintended consequence under the original draft that would have prevented the collection of passenger cards from citizens and noncitizens arriving in and departing from Australia because they contain signatures. A signature is defined to be a personal identifier for the purposes of the Migration Act. It does seem that a little more attention to detail is needed here. I think I was speaking about that yesterday as well.

The amendments also provided clarification so that clearance would not be restricted to wholly one or the other—that is, the automated system or the migration clearance officer. This ensures that a passenger can hand their passenger card to an officer and still be cleared through the automated system. You would obviously need to avoid the situation where you then get stuck at that point if you have chosen one and not the other. Labor supports these amendments. They are sensible amendments. They in fact go to clarifying, clearing up and correcting some omissions.

Let us have a bit of a talk about SmartGate. Labor does support the move towards the use of biometric technology for the purpose of identification. However, Labor does note that there have been some teething problems with SmartGate itself. The reliability of the technology such as that used in the SmartGate system has not been without some criticism. In fact, I think it is now called ‘SmartGate No. 1’. I do recall a range of iterations of that prior to this current SmartGate model. In fact, completely different stands were used in the past. My recollection is that this is about the third iteration of SmartGate that has been trialled and is now being rolled out.

On 5 September 2006 the Australian Financial Review noted that industry insiders had identified gaps in biometrics such as excessive error rates, a poor ability to find database matches and high sensitivity to varying conditions. The article referred to a senior policy analyst at the White House Office of Science and Technology who had estimated that the accuracy rate for facial scanning is about 90 per cent. For fingerprints it is 99 per cent and for iris scanning it is about 97 per cent.

The reliability and effectiveness of the SmartGate system was directly questioned by Dr Roger Clarke, a visiting fellow in the Faculty of Engineering and Information Technology at the Australian National University. He made these remarks on ABC Radio’s PM program on 5 May 2006. Dr Clarke stated then that SmartGate would face difficulties because:

... it’s built on the assumption that a person’s face will always appear the same, when in reality that’s rarely the case.

He stated that this was particularly challenging when you are trying to do this in volume, with large numbers of people passing through the process.

In their 2005-06 annual report Australian Customs maintained that, although there were problems initially, ‘by the time SmartGate comes into full operation next year all the creases will have been ironed out’. That beats the term, ‘It’s a work in progress’, which the then minister used, Customs might recall. To that extent, the Howard government is asking us to take on faith a Customs assurance of a successful IT contract management. Forgive me if I smile at that; perhaps it is a wry smile. The problem is that we have just seen the release of an audit report into the last IT project at Customs—if there has not been one that has failed since—which was the Customs cargo management system. Customs might recollect only too well—in fact I suspect they are still working through some of the matters—that that also is ‘a work in progress’, but I am happy to be corrected if it is no longer in that category. That project was approved without a financial management plan; it was costed on the basis of a stab in the dark, was delivered years late and was approximately—wait for it!—$200 million over budget.

Labor has strong reasons to question the government’s ability to manage the implementation of systems technology in this area. Risk profiling of people who come to our country is critical for national security. We need to know who is coming into our country so that we can do background checks before they arrive. The same is true for sea and air cargo. Customs analyse sea and air cargo in Australia by computer; they look at the cargo reports and check them against risk profiles. At Senate estimates hearings this year we heard that for 12 days the Howard government switched off up to 3,200 separate risk profiles when the Customs computer crashed as a result of the minister ordering that a half-ready and inadequately-tested IT system be switched on. When Customs went back and risk profiled the sea and air cargo reports after that incident, they found that an indeterminate number of air cargo reports and import declarations appeared not to have been checked. You then have to look at what the audit report said, because it really does not leave you in any doubt. It states:

The deactivation of—

over 4,000—

risk profiles—

over several days—

presented a considerable risk to Australia’s border security and Customs’ revenue collection responsibilities. These profiles covered areas such as counter terrorism, illicit drugs, revenue, prohibited items and compliance.

The rush to introduce technology to streamline processes such as in this instance is surely a warning for the government, particularly in relation to uncertain technology in other areas. With this government’s track record, it is very difficult for Labor to accept its assurances that the same will not happen in this case. We must, though, ensure that the identity verification systems are accurate, feasible and robust. We have no argument about that. The problem will be in the delivery, and I do not want to hear again from the government that it will be ‘a work in progress’, when it starts to have teething problems. They should ensure that the system works accurately from day one.

The National Director of Border Intelligence for the Australian Customs Service commented in May 2006 that the biometric technology is ‘urgently needed to deal with the increasing numbers of people arriving at Australian airports’. The director stated that facial recognition technology has ‘a high accuracy level’. In answer to a question from me during estimates hearings, when I raised concerns that SmartGate might actually run the risk of causing undue delays to processing rather than alleviating congestion, the director unfortunately would not reveal what the level was during the SmartGate trial. If this expensive technology is so sensitive and prone to confusion, and therefore more likely to direct people to manual processing rather than to automated processing, it does not actually appear to be a ‘smart gate’ at all. In short, if the system does not do what it is supposed to do with a high degree of accuracy you will simply have to have a manual system as a backup to ensure that those who do not get through the first gate have to go through to the second gate—in other words, it would be back to manual processing.

On 31 October 2006, in answer to a question at Senate estimates hearings on the implementation of SmartGate following its trial, an Australian Customs Service officer stated:

The idea is, at this stage, that the first implementation will be at the end of February next year in Brisbane. As I said, it is a development implementation to develop the model fully. Then we intend to move to Sydney and Melbourne after that. But that will be a few months off. It will probably be in the latter part of the next calendar year.

So, following the trial, the implementation of the system is:

... a development implementation to develop the model fully.

The question is: why has the government chosen to proceed with legislation without first having a fully developed model? Hopefully, some light might be shed on that point during the committee stage of this bill. Despite concerns with the technology more generally, governments in countries such as Britain, the United States, Germany, Israel, Brazil and Singapore are rolling out their own biometric authentication systems in customer-facing departments such as customs, social security and health. It does appear that we are simply reinventing the wheel. The government also should be able to explain whether these models have been tested by Customs for effectiveness and efficiency. If there are other models and standards out there, why would we not be doing this in accordance with those standards? And if they do not exist and we are developing our own model, are we doing it in isolation from models that are being developed? Or has Customs looked at models which might be implemented but which are currently on the shelf? Ultimately, what we want is a system that integrates all the other systems so that we do not have a hotch-potch border control system.

The other main purpose of the bill is to enable the minister to specify a time when a special purpose visa will cease to be in effect. As I have said, Labor supports this amendment. The ability to cancel a special purpose visa immediately, however, is unfortunately overdue. At present maritime crew are granted a special purpose visa on arrival in Australia following checks against the Department of Immigration and Citizenship movement alert lists. This process does not permit security checks to be conducted before the crews of these ships are allowed to enter Australia—an issue Labor has been saying for a long time needs to be addressed. While the government recently introduced a checked visa for maritime crew in the Migration Amendment (Maritime Crew) Bill 2007, Labor questioned why it had taken some 6½ years, since September 11 2001, for the government to introduce it. The government has only just adopted what has been a longstanding Labor Party policy to vet foreign maritime workers. The measures in the maritime crew bill were another example of the government adopting a longstanding Labor policy in order to address a security related issue.

In conclusion, the government continually neglects to monitor and regulate the necessary micronational security issues. It does so in two ways. It either neglects them or it shoots back with the retort, ‘It’s a work in progress.’ On that model you will never finish it and you will never get it right. In fact, you will never strive to get it right. That is the point of it all. If there are holes and they are identified, you should be able to remedy them. If there are deficiencies, you should be able to fix them. But when you continue to ignore and neglect micronational security issues then we will have this piecemeal, late, ad hoc legislation dribbling out of the government. It is not good enough.

The government is spending considerable money on Immigration and Customs related IT systems. However, based on the IT system contract management we have seen to date, it is simply not up to scratch. Simply spending money does not address a problem or issue. It must be targeted, it must be robust and it must be effective. That is the outcome that Labor would expect.

While Labor supports the move to biometric authentication systems, we do have concerns that the government’s approach to go it alone internationally and to iron out identified problems with the SmartGate system during its introduction is not good enough. While Labor supports this bill, it remains wary of the system the government has chosen and its ability to administer it. Perhaps I can restate the latter in a stronger way. The government has not demonstrated clear IT management credentials in the Australian Customs Service. Labor will be monitoring closely the performance, cost and international compatibility of the SmartGate system.

I turn to the Migration Amendment (Review Provisions) Bill 2006 [2007], which is being debated cognately with the Migration Amendment (Border Integrity) Bill. The bill attempts to fix two unintended anomalies in the Migration Act that had been exposed by High Court and Federal Court decisions over the past two years. The courts have interpreted the Migration Act in a way that imposes rigid due process requirements on the Migration Review Tribunal and the Refugee Review Tribunal regarding the communication of information that would be adverse to the applicant’s case. Given my time is about to expire, I seek leave to incorporate in Hansard the remainder of my second reading contribution on the Migration Amendment (Review Provisions) Bill.

Leave granted.

The speech read as follows—

So the bill attempts to rectify the bill in two main ways:

It confers on the tribunals a discretion to the effect that they can choose whether to communicate orally or in writing the particulars of any information that would be the reason, or part of the reason, for affirming the decision under review and invite the applicant to comment on the information; and

It introduces an exception to the requirement to communicate adverse information to the applicant—and that is that the tribunal need not communicate the information that the applicant originally provided to the Department of Immigration for the purpose of their visa application, with the exception of information provided to the Department orally by the applicant.

Labor’s position

Labor supports this bill for several reasons.

First, it is clear that the rigidity of the requirement currently imposed on the tribunals is an unintended consequence. For example, the Act stipulates that the tribunal need not communicate adverse information that was provided to the tribunal by the applicant in their ‘application’. The courts have interpreted this in a very narrow way to mean the applicant's ‘application’ to the tribunal to have their original application reviewed as part of the merits review process.

As a result of this, the Tribunal has been required to put to the applicant in writing within statutory time-frames factual information that the applicant themselves had already provided in writing with their original applications to the Department – e.g. passport information and statutory declarations.

This bill clarifies that the tribunal need not put to the applicant in writing information that the applicant originally provided to the Department of Immigration in their visa application.

It is desirable that the Tribunal put to the applicant in writing evidence and factual information that would be a reason to affirm the original negative decision of the Department. This is an important component of the fair hearing rule that requires that applicants understand the evidence against their case and be given an opportunity to respond to the evidence.

However, the courts’ interpretation of the Act has stretched what should be a very reasonable requirement into an often unnecessarily burdensome process.

Secondly, while there are certainly benefits of having any adverse information that the tribunal would rely upon to affirm the Department's original negative decision communicated to the applicant in writing, it is often the case that this requirement to communicate in writing delays the processing of the case, even in a situation where the applicant was happy to deal with the matter orally during the course of the hearing.

The administrative burden certainly has impeded the tribunals’ ability to process the applications in a timely manner. This has been particularly problematic for the RRT, which must comply with the statutory time limit of 90 days for the processing of the applications.

Aside from the enormous administrative burden these rigid requirements have placed on the tribunals, applicants themselves can also be frustrated and can come out with no extra benefit in terms of a fair hearing.

Flexibility for flexibility’s sake is not the point of this bill; it’s flexibility that will in appropriate circumstances assist the applicant as well as the tribunal.

Thirdly, while the bill provides the necessarily flexibility needed, at the same time it includes additional safeguards to protect the interests of the applicant. For example, where the tribunal chooses to communicate the adverse information to the applicant orally during the hearing, the bill requires:

That the Tribunal member must ensure, as far as is reasonably practicable, that the applicant understands the relevance of the adverse information to the review;

That the Tribunal must inform the applicant of their right to request an adjournment in order to allow the applicant to prepare their response, and must grant the adjournment if reasonably requested;

The new provisions inserted in sections 357A and 422B specifically state that the Tribunal must act in a way that is fair and just. The Tribunal’s decision as to what will be appropriate in particular circumstances will be subject to this provision.

Hence, the Tribunal is not being given an unfettered unreviewable discretion to provide material orally rather than in writing. The bill enables a continuation of the current judicial oversight of procedural fairness.

Labor's concerns

Labor is however concerned about the prospect of increased litigation resulting from this bill.

I quote from the Committee report:

‘It is almost certain that the provisions will invite litigation challenging whether the Tribunals:

considered that the applicant understood the information;

reasonably formed the view that the applicant did not require more time to respond to the information; and

met the overarching requirement to apply the provisions in a fair and just manner.’

Labor will be monitoring the outcome of the bill to ensure that excessive litigation does not result. However, Labor’s amendment goes some way to reducing this likelihood.

Committee recommendations

In the Senate Legal and Constitutional Affairs Committee report, several concerns were raised about the bill, which led the Committee to recommend that the discretion to communicate adverse information orally should only be enlivened if the applicant consents. If the applicant does not consent, then the tribunal’s obligations would default back to the requirement to communicate in writing.

Labor is introducing an amendment here in the Senate to give effect to the Committee’s recommendation (number 1) that the applicant can elect for the tribunal to communicate the information orally.

The government has already indicated that it would not be backing the Committee’s recommendation.

However Labor believes that the amendment should be supported because it is likely to assist in ensuring the applicant understands the process and it would assist the applicant in trusting the tribunal’s decision.

Conclusion

This Bill addresses an unsatisfactory situation that Migration Review Tribunal and the Refugee Review Tribunal have found themselves in as a result of recent High Court and Federal Court decisions as to how the tribunals need to carry out their reviews.

The existing provisions have become unnecessarily burdensome without necessarily providing any added assistance to the applicants or providing any additional procedural fairness.

Labor will be supporting the bill because it is an attempt by the Government to remove some unnecessarily cumbersome administrative processes from the merits review process. We believe the bill could have been improved by our amendment but nevertheless the bill achieves outcomes that are beneficial for all parties involved.