Kerry Nettle (NSW, Australian Greens) Share this | Hansard source

I will speak first to the Migration Amendment (Border Integrity) Bill 2007 and then to the Migration Amendment (Review Provisions) Bill 2006 [2007]. The Australian Greens will support the Migration Amendment (Border Integrity) Bill 2007 in order to facilitate security at our airports. The SmartGate technology which this bill facilitates uses electronic facial recognition technology, in conjunction with electronic passports containing biometric information, to check passengers entering Australia. SmartGate will only work if the technology is truly smart. If it is not truly smart then it may cause disruption and have the potential for lapses in airport security.

The Greens have concerns that the technology for facial recognition is not as reliable as the government would like us to believe and that Australia should not rely on any half-baked technology to ensure airport security and safety. We note the concerns that facial recognition technology has a success rate that is much lower than other biometric technologies such as fingerprints and iris scans. We also note that the ability of facial recognition technology to function properly can be hampered by lighting effects, eyeglasses, facial hair, make-up, cosmetic surgery, ageing and even a person’s facial expression.

Facial recognition technology is based on statistical probability rather than an exact match. It essentially converts measurements from a photograph of a person’s face into a series of numbers and then compares those numbers against the face as measured by the facial recognition technology. If it is statistically probable that the numbers match then SmartGate will allow the person to enter Australia. If they do not match, it will alert a Customs officer of the need to process the person manually.

A 2002 study conducted by the US government’s National Institute of Standards and Technology and the Pentagon’s Defense Advanced Research Projects Agency looked at a range of biometric facial recognition technologies commercially available and found significant error rates. They found that even the best technology still had high error rates with a 10 per cent false rejection rate and a one per cent false acceptance rate. That would mean that one in 100 people would be falsely accepted, despite the photo on their passport and the image taken at the airport gate not matching. That is a significant problem if you look at Sydney airport as an example. Nearly one million passengers passed through the international terminal in January of this year. Such an error rate could result in up to 10,000 people a month being allowed into the country despite their passport photo and their face not matching. Other problems that the national institute report identified included the fact that female face matching had a higher error rate than male face matching and that younger people were up to 20 per cent harder to match than older people.

According to media reports in late 2005, a study commissioned by the Dutch Ministry of the Interior and Kingdom Relations raised fresh concerns over a number of technical issues related to the issuance of biometric passports. According to the study, the results of the first biometric passport trials conducted in 2004 and 2005 showed that the biometric documents were less robust than traditional passports. The quality of digital photographs was a concern, as unclear backgrounds, insufficient contrast and other problems such as reflection from spectacle lenses resulted in about 1.6 per cent of photographs being unsuitable for automated biometric matching.

In the United Kingdom, the findings of a biometrics enrolment trial published early in 2005 revealed that biometric technologies were still not foolproof and that large-scale issuance of biometric identity and travel documents would inevitably run into some glitches. In Germany, concerns over the government’s biometric passport program were voiced by security and privacy experts, parliamentary committees and the federal data protection commissioner, who even called for a moratorium on the introduction of biometric passports in light of the still immature state of the technology and a number of unresolved data protection issues.

One concern is that facial recognition technology will give a lot of false negatives—meaning manual checking for Customs officers and perhaps few efficiency gains. Too many false negatives may lead to inefficiencies in the flow of people through our airports and to unnecessary embarrassment, suspicion or delay for those wrongly picked out by the SmartGate system. Another more troubling concern is that the technology may allow false positives, where a person who is not the passport holder may be able to fool the SmartGate facial recognition system and enter Australia illegally.

During the trials of this technology, two Asian businessmen participating in the trial were able to swap passports and be accepted by the SmartGate system. We certainly hope that these glitches have now been ironed out, and, as I indicated, I will ask some questions about this in the committee stage.

I note that Murray Harrison, the Chief Information Officer of the Australian Customs Service, told a conference on 7 March 2006:

SmartGate doesn’t enhance security. It helps flow and efficiency in the limited space available in airports.

The Australian Greens are in favour of efficient and fast processing at our airports. However, we are not in favour of implementing technology that may be detrimental to airport security. We therefore assume that the government will not roll out the SmartGate system into all our airports until the technology has been proven to be absolutely foolproof. We hope that we will not have a fiasco like we did with the Customs cargo management IT system.

As with the ID card, or the smartcard or the access card, the Australian Greens are concerned that technologies such as SmartGate may lead to the construction of massive databases of biometric and other personal information which infringe on our civil rights and right to privacy. Therefore, we welcome the fact that SmartGate will be legislatively prohibited from collecting and storing biometric and other data. If SmartGate were allowed to collect such data, we would have much greater concerns about its implementation.

I note, as others have, that there has been a tendency over the years for legislative and feature creep—that is, new laws and systems are implemented on the proviso that their function is strictly limited, but with the passing of time the government comes back to parliament asking for an extension of powers beyond what was originally agreed to and set.

The Australian Greens would be wary of any future attempts to allow SmartGate and similar technologies to collect and store information without the Australian public having a rigorous and open debate about whether they wish their government and its agencies to collect biometric and other data and hold it in such databases. The Australian Greens support this bill, but urge caution in the implementation of the SmartGate technologies it allows. As I indicated, I will ask more questions on these issues in the committee stage of this bill.

I will now address the second bill, the Migration Amendment (Review Provisions) Bill 2006 [2007]. The Australian Greens oppose this bill on the grounds that it further erodes the ability of people to get natural justice before the Refugee Review Tribunal and the Migration Review Tribunal. The extensive Senate inquiry into the administration and operation of the Migration Act reported in March 2006. We are still awaiting a government response. That inquiry found many problems with the administration of the Refugee Review Tribunal and the Migration Review Tribunal. It made a total of eight recommendations specifically about the RRT and the MRT, none of which have been taken up by the government.

Witnesses provided submissions and gave evidence about a raft of inadequacies in the Refugee Review Tribunal and the Migration Review Tribunal processes and told of how people had been denied natural justice by these tribunals. Many witnesses suggested that the best solution to these problems was to abolish the tribunals and refer cases either to the Administrative Appeals Tribunal or directly to the Federal Magistrates Court.

Recommendation 22 recommends that applicants appearing before either the Refugee Review Tribunal or the Migration Review Tribunal should be entitled to legal representation. Recommendation 23 recommends that the Commonwealth legal aid guidelines are amended to provide for assistance in migration matters, both at the preliminary and the review stages. Recommendation 24 recommends that applicants have a right to be provided with copies of documents, the contents of which tribunal members propose to rely upon to affirm the decision that is under review. The government has so far ignored the recommendations from the Senate Standing Committee on Legal and Constitutional Affairs. Instead, it is asking the Senate to pass a piece of legislation which will further erode the semblance of natural justice in these review tribunals.

Proposed sections 359AA and 424AA grant the tribunals the discretionary power to provide information to applicants orally and receive a response orally instead of in writing. The government wishes to do this in order to facilitate faster and more efficient processing of cases. The Senate inquiry into the Migration Amendment (Review Provisions) Bill 2006 heard evidence that these changes may deny applicants natural justice, adversely affecting the ability of many applicants to make their case and understand the workings of the tribunal, and that they would perhaps also lead to refugees being mistakenly returned to countries where they face persecution.

There is pressure upon the tribunal system to process claims more efficiently and faster. For example, A Just Australia told the Senate inquiry into the legislation that they feared:

This pressure will result in more and more oral directions being given, despite written direction being a better guarantor of for real procedural fairness , in order to achieve set targets and so maintain funding rates. In time, any written direction will become an anomaly.

Several lawyers and migration agents expressed concern that these provisions will make it far more difficult for their clients to understand the proceedings of the tribunal and to provide suitable evidence and information to the tribunal. This is a particularly pertinent point when you consider that many applicants do not have a good understanding of English and must use an interpreter. Indeed, 60 per cent of Migration Review Tribunal hearings and 90 per cent of Refugee Review Tribunal hearings require the services of an interpreter. To be given oral information via an interpreter on the spot rather than written information, which can be explained by advocates, is a distinct disadvantage.

Many applicants will also be unfamiliar with the workings of the tribunal and not fully aware of their rights and what is expected of them. Regarding the value of written communication, in 2005 Justice Michael Kirby, in the case of SAAP v the Minister for Immigration and Multicultural and Indigenous Affairs, wrote:

A written communication will ordinarily be taken more seriously than oral exchanges. People of differing intellectual capacity, operating in an institution of a different culture, communicating through an unfamiliar language, in circumstances of emotional and psychological disadvantage will often need the provision of important information in writing. Even if they cannot read the English language ... the presentation of a tangible communication of a potentially important, even decisive, circumstance from the Tribunal permits them to receive advice and give instructions.

The Human Rights and Equal Opportunity Commission were concerned that increasing the reliance on oral communication in tribunal hearings would create a ‘grave danger’. HREOC said it was concerned that, by replacing written communication with oral communication, applicants ‘may not fully understand the meaning or significance of what they are being told or of what they are responding to’. I am sure members of the Senate could imagine how difficult it would be to confront a tribunal in a foreign country, being conducted in a foreign language, where an intensely personal judgement about their future is being made.

It is partly because of the difficulty that applicants face when appearing before Migration Review Tribunal hearings or the Refugee Review Tribunal that the Senate inquiry recommended that legal representation is made available so that applicants could be assisted through the complex process. This bill risks the danger of making the tribunal system even more unintelligible for applicants. Surely any system that wished to produce fair and considered judgements would want to make it as understandable and intelligible to applicants as possible.

This bill also risks the danger of increasing the amount of litigation regarding Refugee Review Tribunal and Migration Review Tribunal decisions. The department of immigration acknowledged that in the short-term these amendments will result in more complex and costly litigation. David Manne of the Refugee and Immigration Legal Centre told the Senate inquiry into this legislation that reliance on oral particulars could result in more uncertainty about the legal status of decisions and whether there was jurisdictional error or not. Of course, this would result in more court appeals.

Instead of obscuring the review tribunal processes further, such as the measures in this bill have the potential to do, the government should be making the processes more transparent. By allowing proper legal assistance and more robust rules of evidence in the first place, tribunal decisions would be likely to face fewer appeals and operate more efficiently. If applicants feel like they have had a fair hearing, they will be less likely to lodge an appeal. Written particulars provide black-and-white clarity that oral particulars do not.

The senate inquiry into this piece of legislation acknowledged many of the issues that I have spoken about. The inquiry recommended that proposed sections 359AA and 424AA are amended so that adverse material may only be provided orally at the election of the applicant. This amendment would improve this piece of legislation, and the Australian Greens will move such an amendment in the committee stage of this bill.

Last year, the Senate Legal and Constitutional Affairs Committee inquiry into the Migration Amendment (Review Provisions) Bill 2006 heard a lot of evidence about the culture and the operations of the department being oriented toward finding reasons to reject applicants. The committee heard—and I have spoken on this before—about a culture of suspicion, emanating from government ministers, permeating through the department. We heard about officers looking for a reason to catch someone out, rather than assessing each case with an open mind. We have all seen, from tribunal hearing transcripts, that there has been a concentration, in some of those cases, on small contradictions and anonymous dob-ins rather than the bulk of the evidence. The ministerial intervention process remains a black hole for transparency, and I have spoken much about that issue before in the chamber.

We should be amending the Migration Act to improve processing, not only in terms of speed and efficiency but also in terms of fairness. Certainly, we should not be passing amendments that sacrifice natural justice for efficiency.

The report of the Senate inquiry had 62 recommendations to improve the Migration Act. The government should be implementing these recommendations and, in the Greens’ view, abolishing failed policies, such as mandatory detention, off-shore processing and temporary protection visas, rather than making the system even more complicated for people who wish to call Australia home.