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

I rise to speak on the Migration Legislation Amendment (Information and Other Measures) Bill 2007. This bill seeks to make several simple amendments, if we could call them that, to the Migration Act to broaden the ability of the Department of Immigration and Citizenship to access and disclose personal identifiers in a way that is consistent with the Privacy Act provisions. The amendments proposed are not in themselves controversial but they are nevertheless important amendments. What is controversial is the bizarre delay in the government introducing this bill. The delay has had far-reaching consequences not only for the day-to-day running of the Department of Immigration and Citizenship but also on the ability of law enforcement agencies to investigate and prosecute crimes such as people smuggling.

This bill attempts to achieve three main objectives. It seeks to widen the scope for disclosure of identifying information in certain circumstances. It seeks to enable people to access personal records held by the department that relate specifically to them. And it seeks to incorporate new fishery offences introduced last year. I will deal with each of those objectives in greater detail as this debate proceeds.

In terms of the first objective, the bill attempts to fix some unintended consequences of some amendments in 2004 to the Migration Act regarding protection of privacy. The department may recall—although the faces have changed, by the look of it—that in 2004 the Migration Legislation Amendment (Identification and Authentication) Act was passed by parliament. This act introduced a regime for collection, access and disclosure of personal identifying information of noncitizens collected by the department. The situations in which such information is collected include: when people are applying for an Australian visa, when people are going through immigration clearance, when a noncitizen is put into immigration detention and when a person is suspected of being an unlawful noncitizen. The 2004 amendments prohibited the department from accessing and disclosing such personal identifiers except in circumstances expressly permitted under the act. Non-permitted access or disclosure was deemed to be a criminal offence that attracted up to two years imprisonment. But, in another example of this government falling short of the mark, the measures introduced ended up being overly restrictive.

The bill before the parliament now widens what is lawful disclosure for identifying information. Three new exemptions to unlawful disclosure are proposed that bring the Migration Act in line with the Privacy Act 1988. The first is where a person who accesses the information believes on reasonable grounds that the access or disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the person or of any other person. This provision would apply, for example, where there has been a threat against an immigration official or the Australian embassy, and the department held a photograph of this person. Then the amendment would allow the department to provide that photograph to the AFP to assist them in investigating the threat. The second exemption is where the disclosure is reasonably necessary for the enforcement of criminal law of the Commonwealth or of a state or territory. Hence, this amendment would fix the current problem whereby the department cannot disclose a signed incoming passenger card to the AFP or the Commonwealth DPP to assist with cracking down on people who might be up to no good, such as drug smugglers. The third exemption is where the disclosure is required by or under a law of the Commonwealth or a state or territory. This amendment is primarily designed to allow the department to provide identifying information in response to search warrants issued by a state or territory agency.

These amendments also amend mirror provisions in the Fisheries Management Act 1991, the Torres Strait Fisheries Act 1984 and the Environmental Protection and Biodiversity Conservation Act 1999. The reason such mirror provisions exist is that, according to the explanatory memorandum, illegal fishers may be detained under any of these three acts but then the legal basis for their detention may shift to the Migration Act, under which they are then detained.

There are several other amendments provided by this bill to what is a lawful disclosure that go beyond the Privacy Act, but it seems that the case has been made that, nevertheless, they are thought necessary. That occurs where the disclosure is to a Commonwealth, state or territory agency for the purpose of verifying that the relevant person is an Australian citizen or holds a visa of that particular class. For example, many social security benefits require the recipient to provide evidence that they are an Australian citizen. Another such ground where it is thought necessary that that information may be able to be shared is for the purpose of investigations of the Privacy Commissioner or the Ombudsman relating to any action taken by the department. In addition, it may be disclosure of audio or video tapes for the purposes of the Migration Act or the Citizenship Act, which I understand the department says is for the purpose of utilising transcribing and translating services. It may also be for the purpose of facilitating or expediting the exercise of powers or performance of functions of the Migration Agents Registration Authority, commonly known as MARA, to investigate complaints into migration agents.

Allowing people to access their own movement records is the next area I will deal with. Schedule 2 of this bill enables the department to disclose to a person or to their appointed agent their own movement records, rather than requiring them to apply for access pursuant to the Freedom of Information Act. That would seem a sensible thing to be able to do, quite frankly—and if the department missed it in 2004 then it really is lucky it has got a change of face now. This amendment is designed to help both applicants and the department by allowing the department to provide people with their own movement records—which they may need, for example, for tax or health insurance purposes—so that the applicants need not apply under the FOI Act for access to those documents. If there is a committee stage on this bill, the government might like to indicate then how many times that has had to be undertaken and what cost has been shifted to people for that. I will foreshadow those questions so that we might have an opportunity to get some answers—I thought I might make sure you have to work this evening, Parliamentary Secretary Mason!

The application process under the FOI Act is far more complex and the retrieval process is unnecessarily resource intensive for the department. Hence, the explanatory memorandum states that this bill will allow the department to retrieve the information more efficiently for the client. Those areas do provide a greater responsibility for the department in that instance too, because the department has to consider more broadly the issues of how it handles that information, how it then provides it to the relevant people and how it ensures that privacy is maintained.

Schedule 3 is a technical amendment to the Migration Act that merely alters the definition of a ‘fisheries detention offence’ to include new fisheries offences introduced in 2006 to ensure that those arrested for committing the new offences receive an enforcement visa on arrival to Australia. It is clear that some of these matters were not fully thought out right back from 2004 till now. On one hand it is encouraging to see that the department is slowly moving, ensuring that these matters are now rectified. It would be interesting to know when the department first became aware of some of these issues and how long it has taken the matters to come to light. We already know that there has been delay in introducing these laws and, given the serious consequences for criminal investigations and prosecutions, that is difficult to understand. It has taken the government 2½ years to remedy these problems and one would have thought that it should have taken less time than that. There may be reasonable explanations, of course. The department may have been very busy during that period. I do recall some certain significant events over the last couple of years which have kept them busy. They do have a new name too—‘people are our business’—so hopefully they will be able to assist people with this new bill when it becomes an act.

In his second reading speech for this bill the new Minister for Immigration and Citizenship, Kevin Andrews, outlined the havoc created by these laws. It is unusual for a minister to do that, but he did take the opportunity to say that the department has stopped disclosing photos and signatures that would help in investigating and prosecuting Migration Act offences. He said that the department no longer discloses photos and signatures to law enforcement agencies such as the Australian Federal Police or the Commonwealth Director of Public Prosecutions for non-immigration related crime. For example, the minister stated that several drug importation matters ‘have been delayed because of our inability to provide this information’. He said:

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

Those were the words of the minister in his second reading contribution. The minister also stressed in his second reading speech:

... in light of the serious problems presently being faced by my department—

and it is not only in this area, I presume, but I suspect he was talking about this bill—

it is essential that certain amendments be made as soon as possible.

The legislation that caused this raft of problems was introduced in 2004. According to the Parliamentary Library Bills Digest, these problems started to emerge by late 2005. It is now March 2007 and rapidly approaching April.

When the Labor spokesperson for immigration, the member for Watson, Mr Burke, demanded to know why it had taken such an awfully long time to make basic amendments to the Migration Act to rectify serious problems that had arisen from the 2004 amendments, all the member for Moreton, Mr Gary Hardgrave, could retort was, ‘The process of drafting is always subject to the other priorities of the parliament.’ That does seem a very bureaucratic answer, quite frankly. It is not one that I would have expected Mr Hardgrave to make. For a government that claims it is proactive on border protection, people smuggling and national security, it really is an appalling excuse especially given the work that the department had gone through post Vivian Alvarez, Cornelia Rau and the Palmer review—and I will not go to all the matters that surround those. But in the final report—and I would be happy to be corrected here—I recall Mr Palmer trying to implement a better proactive approach to be able to identify and use data more effectively, especially the ability to have photographs and signatures available. In a more general sense one would have thought that the government would have moved a lot quicker to rectify these areas, if that were the case.

I would hope that in the second reading debate in the Senate the government can say that it has learnt its lessons from those earlier experiences. It concerns me that this may not be true. The government has repeatedly proven its incompetence when it comes to immigration matters. There have been numerous stuff-ups in the department revealed in the media over recent years. The examples of delay in fixing basic problems add to this growing list of sorry failures.

People smugglers put the lives of desperate people at risk on the high seas. Labor wants to make sure that the people responsible for such an ugly trade are met with the full force of the law. The same goes for illegal fishers and drug smugglers, may I add. When personal identifiers have to be withheld from agencies that are investigating serious crimes, whether they are immigration related or not, this government should be concerned about their credentials, quite frankly. It is disgraceful that people breach our border unlawfully or smuggle drugs and convictions do not happen because the government could not be bothered to introduce legislation that makes simple amendments that rectify the situation. Labor wants to ensure that the need for swift access and disclosure of such documents for the purpose of prosecuting crimes such as people smuggling is balanced against the need to prevent unwarranted breaches of privacy. Labor agrees with the government: this bill does reach an appropriate balance.

Labor is and remains shocked, though, at the delay in the introduction of such basic legislation to amend a problem that has caused enormous delay in the prosecution and investigation of crimes. We note that this is an election year, and we can only surmise that this is the reason why the government is moving so rapidly considering its slow pace up to now after a wait of more than a year. If we may provide any sage-like advice, we ask that the government, whenever such problems again come to light in the future, promptly introduce legislation to fix them and not leave its departments and the AFP, as well as other important bodies affected by defective legislation, in the lurch. I add, in conclusion, that Labor welcomes this bill.

Brett Mason (Queensland, Liberal Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

I thank Senator Ludwig very much for his contribution to the debate on the Migration Legislation Amendment (Information and Other Measures) Bill 2007. His conceptualising of the bill as access versus privacy is an aspect that I enjoy, one that we have seen a lot of in this parliament in recent times. I will come to the point that Senator Ludwig raised about the costing implications in a minute.

This bill amends the Migration Act 1958 and mirrors provisions in the Environment Protection and Biodiversity Conservation Act 1999, the Fisheries Management Act 1991 and the Torres Strait Fisheries Act 1984 to address serious limitations in the provisions to limit access and disclosure of identifying information. Senator Ludwig touched on that.

Identifying information includes personal identifiers such as a person’s photograph, fingerprint or signature. Under all four acts, it is an offence to access and disclose identifying information unless the access or disclosure comes under a list of permitted accesses and disclosures. The limited grounds upon which this information can be accessed and disclosed is affecting the Department of Immigration and Citizenship’s ability to continue a range of normal working practices such as disclosing photos and signatures to other agencies—an issue we have touched on many times in recent weeks in this parliament.

The bill addresses this problem by adding some additional access and disclosure grounds to the four acts. These additional grounds are targeted at alleviating the most pressing difficulties being experienced under the current arrangements. For example, access and disclosure will be permitted where it is done to prevent or lessen a serious and imminent threat to life or to health. The Department of Immigration and Citizenship will be able to disclose identifying information to the Migration Agents Registration Authority to assist in investigations into complaints against migration agents. Disclosure of identifying information to the Commonwealth Director of Public Prosecutions will also be permitted, to assist in investigations and prosecutions.

The amendments in the bill to replace ‘noncitizen’ with ‘person’ in various disclosure grounds  is to ensure that a permitted disclosure can still occur after the noncitizen from whom the information was collected has indeed become a citizen. However, the act will continue to allow personal identifiers to be collected only to identify noncitizens.

To follow up Senator Ludwig’s point, this bill will also broaden the ability of the Department of Immigration and Citizenship to disclose to a person that individual’s movement records, thereby avoiding the need for the person to access their records through the freedom of information process. This will greatly improve the service that the department can provide. The government, as I understand it—and this is in answer to your question, Senator Ludwig—has not costed the implications of this. This bill will also amend the definition of ‘fisheries detention offence’ in the Migration Act to ensure that enforcement visas are granted to noncitizens who have been brought to Australia in relation to new fisheries offences recently incorporated into fisheries legislation.

In summary, by expanding the currently limited grounds upon which identifying information can be accessed and disclosed, we will improve the efficiency of operations within the Department of Immigration and Citizenship. The bill will also enhance client service by enabling the disclosure of an individual’s movement records to the individual to which they indeed relate.

Question agreed to.

Bill read a second time.