Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Hansard source

by leave—I move opposition amendments (1), (2), (3) and (4):

(1) Schedule 1, item 34, page 7 (after line 27), after subsection 257A(7), insert:

Personal identifiers for minors or incapable persons

  (7A) If a minor or an incapable person (the person) is required to provide one or more personal identifiers under subsection (1), the personal identifiers must be provided:

  (a) in circumstances affording reasonable privacy to the person; and

  (b) in such a manner that ensures particular care is taken to treat the person with humanity and respect for human dignity.

(2) Schedule 1, item 50, page 9 (lines 24 and 25), omit the item, substitute:

50 Subsections 261AL(5) and (6)

  Repeal the subsections, substitute:

Persons present while identification test is carried out

(5) If a person who is a minor provides a personal identifier, in accordance with a requirement under Division 13AA of this Part, by way of an identification test carried out by an authorised officer, the test must be carried out in the presence of:

  (a) a parent or guardian of the minor; or

  (b) either:

     (i) if the minor is female—2 female independent persons; or

     (ii) if the minor is male—2 male independent persons.

(6) However, if the Minister is the minor's guardian, the test must be carried out in the presence of:

  (a) if the minor is female—2 female independent persons (other than the Minister); or

  (b) if the minor is male—2 male independent persons (other than the Minister).

(3) Schedule 1, item 53, page 10 (lines 3 and 4), omit the item, substitute:

53 Subsection 261AM(4)

  Repeal the subsection, substitute:

Persons present while identification test is carried out

(4) If a person who is an incapable person provides a personal identifier, in accordance with a requirement under Division 13AA of this Part, by way of an identification test carried out by an authorised officer, the test must be carried out in the presence of:

  (a) a parent or guardian of the incapable person; or

  (b) either:

     (i) if the incapable person is female—2 female independent persons; or

     (ii) if the incapable person is male—2 male independent persons.

(4) Schedule 1, page 10 (after line 4), after item 53, insert:

53A After section 336L

  Insert:

336M Identifying information—serious data breach

Serious data breach

(1) If:

  (a) a person is the responsible person for identifying information; and

  (b) the person holds identifying information; and

(c) there is unauthorised access to, or unauthorised disclosure of, the identifying information; and

  (d) the access or disclosure is in circumstances which may result in a real risk of:

     (i) the unauthorised use of the identifying information; or

     (ii) a serious interference with the privacy of an individual;

then:

  (e) the loss is a serious data breach in relation to the identifying information; and

  (f) an individual is significantly affected by the serious data breach, if, and only if, the individual is the person to whom the identifying information relates.

Notification

(2) If a responsible person believes on reasonable grounds that there has been a serious data breach in relation to identifying information, the responsible person must, as soon as practicable after forming that belief, notify, in writing:

  (a) the individual who is significantly affected by the serious data breach; and

  (b) the Information Commissioner;

of the following:

  (c) a description of the serious data breach that the responsible person believes has occurred;

  (d) the kinds of information concerned;

(e) recommendations about the steps that the individuals should take in response to the serious data breach that the responsible person believes has occurred;

  (f) such other information (if any) specified in the regulations.

Responsible person

(3) For the purposes of this section, responsible person has the same meaning as in section 336K.

Senator Brown, on behalf of the Labor Party, made a speech on the second reading pointing out Labor's position on this legislation—namely, that the collection of personal identifiers at the border is an important part of Australia's national security procedures; it is important that we know precisely who is entering and leaving Australia at any given time; and it is important too that we confirm the identities of those who apply for and those who are given visas to live and work in Australia. Preventing identity fraud is essential. Collecting biometric data allows us to do all of these things. However, we must do so in a way that respects human dignity and the privacy of those who provide biometric identifiers.

As has been previously indicated, Labor also believes that some measures in this bill need to be amended. Our amendments which I have moved today—and I am more than happy to have them voted on as a block, because they do complement one other—are amendments responding to the concerns raised by the Parliamentary Joint Committee on Human Rights and the submissions to the Senate inquiry into the bill by the Law Council and other groups. I know the government has acknowledged the essential truth of those submissions and has moved an amendment of its own, which Labor will be supporting. However, our amendments go further.

The amendments are intended to protect the privacy and the human dignity of minors and incapable persons. They are designed to provide a clear and appropriate response to a serious breach of security in the storage of biometric data. The Migration Act does contain protections for minors and incapable persons, but the human rights committee noted that there are no specific protections in this bill. The act requires biometric data to be collected in circumstances providing reasonable privacy, excludes the presence of unnecessary persons and states that the collection must not involve more visual inspection, or the removal of more clothing, than is necessary. You would have thought they were quite reasonable propositions to put to this chamber. This bill, however, allows the minister and authorised officers to require that data be collected in a way different to that that is set out in the act. The avowed intent is to allow quick finger scans, but nonetheless the lack of specific privacy protection remains a problem, and therefore we will be seeking the support of the chamber for the amendments that we have moved.

The amendments insert specific references to 'circumstances affording reasonable privacy' and taking care 'to treat the person with humanity and respect for human dignity'. The same requirement is also extended to the collection of data from noncitizens. The amendments also specify that the collection of data from minors and incapable persons should be carried out in the presence of a parent or guardian—again, not an unreasonable request—or two independent persons of the same gender as the person providing the data. If the minister remains the minor's guardian, the requirement is for the presence of two independent persons.

Amendment (4) defines what a serious data breach is, who a person considered to be 'significantly affected' by such a breach is and what action might be taken by a responsible person in the event of such a serious breach. A serious data breach occurs when there has been unauthorised access to, or disclosure of, identifying information that may result in serious interference with the privacy of an individual. A significantly affected person is an individual to whom the identifying information relates—again, a very straightforward proposition which I believe can be reasonably expected to enjoy the support of the chamber. If a responsible person has reasonable grounds for believing that a serious breach has occurred, that person must notify in writing the affected person and the Information Commissioner as soon as is practicable. The notification must include a full description of the breach and recommendations about the steps that an individual should take in response.

Labor is confident that amending the bill as we propose would allow it to operate more effectively, with more potential to protect the rights of individuals. I commend these amendments to the chamber.