Concetta Fierravanti-Wells (NSW, Liberal Party) Share this | Link to this | Hansard source

I rise this afternoon to speak on the Migration Amendment (Review Provisions) Bill 2006 [2007] and the Migration Amendment (Border Integrity) Bill 2007. The current multilayered approach of entry into Australia incorporates such innovations as advanced passenger processing, a universal visa system and the coordination of DFAT and the Australian Customs Service. This continues to ensure that Australia has one of the most comprehensive, successful and sophisticated entry systems of any nation in the world. Additionally, these processes continue to ensure that the systems controlling Australian border integrity remain synonymous with notions of safety and security tempered by the values of justice and making sure that fairness is observed.

Consistent with the principles of safety, security and fairness this bill proposes to amend the Migration Act 1958 in two ways to further preserve the integrity of Australia’s border. This will be achieved through the introduction of new facial recognition technology and an amendment to the act in relation to special purpose visas. This government has a strong record on border security and has proactively pursued measures to guarantee the continuing integrity of our strategic frontier. The coalition has funded major expansions in the use of the technologies in support of those wonderful and selfless Australian men and women of the Australian Federal Police and Customs who serve at the very coalface of border security in the fight against terrorism and serious crime.

The government has further taken action to shield Australians against such criminal trends as identity fraud, money laundering and the production of illegal drugs. We have also developed and implemented one of the world’s toughest and most effective national aviation security systems to protect and provide peace of mind to Australians and overseas travellers alike.

This is in stark contrast to the legacy Labor left for us. Labor failed to have a coordinated, forward-looking or flexible approach to border security. It failed to address the risks facing Australia as a destination for people smugglers or to work with other countries in our region to tackle the issue of people-smuggling at its source. During its time in office, Labor’s bad economic management meant that the funding needs of our law enforcement agencies were unfulfilled, leaving Australia a soft target for transnational criminal syndicates and organised crime.

At a time when federal law enforcement and border protection should have been boosted, Labor cut staff numbers in Customs by more than 1,000 between 1990-91 and 1994-95, seriously undermining the ability of Customs to do its vital work in protecting our borders. Of all the issues, none has provided a clearer demonstration of the Labor Party’s lack of leadership than border security. In the midst of the Tampa crisis in 2001 when the government introduced the Border Protection Bill, Labor was initially supportive, as shown in the Hansard of 29 August 2001:

In these circumstances, this country and this parliament do not need a carping opposition; what they actually need is an opposition that understands the difficult circumstance in which the government finds itself ...

Within the space of hours, Mr Beazley had made a spectacular backflip. He said:

The opposition will not support the Border Protection Bill 2001.

The fact is that the coalition government’s tough stance on excision and the Pacific solution is working. It has had a demonstrable deterrent effect on would-be people smugglers. Yet Labor calls it a disaster and wants to replace it with an arrangement whereby a coastguard greets unauthorised vessels and escorts them to Australian territory and the Australian legal system. Such a proposal would mark a return to the past where Australia was a soft target for people smugglers.

It is estimated that by 2009 the number of arrivals and departures at Australian international airports will increase by up to 23 per cent. This will obviously pose additional challenges to immigration clearance systems in relation to both security and the ability to conduct the efficient processing of passenger numbers. Current immigration clearance processes at the border are all performed manually. However, with the introduction of the SmartGate system that has recently been trialled at both Sydney and Melbourne airports, facial recognition and new passport technologies will prove a viable, secure and convenient method of immigration clearance.

The proposal to use an automated system in immigration clearance not only strengthens but streamlines Australia’s border control measures. The proposed amendments are designed to allow for the expansion of this new technology to all Australian citizens and selected noncitizens provided that they hold an eligible e-passport. This convenient and streamlined alternative to the manual processing of immigration clearances is a key budget initiative of the Howard government.

Current Australian passports all contain an embedded microchip that stores much of the same data as that which is contained in the printed version. This includes such data as your photograph, passport number, name, gender, date of birth, nationality and passport expiry. SmartGate’s facial recognition technology verifies a face to passport check of a person’s identity using the biometric data stored in the chip.

In addition to verifying identity, SmartGate also forwards passport details to Customs and the Department of Immigration and Citizenship border systems where the passport and visa details are verified in much the same way as they would be if they were done manually. Once processed, SmartGate will not collect or store any personal information or identifiers from these passports. In fact, the amendments do not introduce any new processing requirements but simply enable eligible passport holders the choice of automated, quick and convenient immigration clearances instead of through a clearance officer.

In addition to enhancing the convenience of immigration clearance throughput, this technology will greatly contribute in combating fraud and act as a deterrent against the use of stolen or forged passports. In addition, this bill also provides for New Zealand citizens who hold an e-passport to apply for and be granted a special category visa using the ease of the automated system.

This bill also seeks to further secure and control the issue and management of special purpose visas. Special purpose visas are temporary visas that allow lawful status to non-Australian citizens of a particular and selected class to travel to, enter and remain in Australia. They cover such traditionally low-risk characters as crew members of non-military ships and airlines, guests of government, and even athletes competing in international sporting fixtures. However, for reasons such as national security, public safety, potential health risks or even character concerns, there are times when it will be appropriate for the minister to cease a person’s special purpose visa.

The act currently provides for the minister to make a declaration that it is undesirable for a person or any class of persons to remain on a special purpose visa. The consequent effect of this declaration is for the ceasing of the special purpose visa. However, where such a declaration is made, the current provisions of the act provide that the special purpose visa remains in effect until the end of that day in which the declaration is made. This is an anomaly that we seek to remedy as no other type of visa remains in effect until the end of the day in which it was ceased. Consequently, as it currently stands, the person who has their visa ceased cannot be lawfully detained until the end of that day even if that person poses some immediate threat to the Australian community or even themselves.

This is of particular concern where, for example, a master of a vessel has reported a crew desertion. In such circumstances Department of Immigration and Citizenship officers would usually cease that person’s special purpose visa and commence processes to locate the person. However, if the person is found on the day their special purpose visa is ceased, the officer cannot detain the person until midnight of that day. This has left Department of Immigration and Citizenship officers with no choice other than to encourage the relevant crew person to go back to a vessel. This is undesirable from a border integrity perspective. The amendments will provide that a subsection declaration takes effect at a time specified in the declaration. However, it is notable that the specified time cannot be a time before the declaration is made. The legal effect will be that the special purpose visa will cease at the time specified in the declaration. If no time is specified in the declaration it will take effect at the end of the day on which it is signed.

The government also seeks to amend the Migration Act to allow flexibility and the more efficient application of procedural fairness to both the Migration Review Tribunal and the refugee tribunal. Under existing provisions of the act and as interpreted by the Federal Court in the Al Shamry case and in the High Court in SAAP, the tribunals are now required to provide information and invitation in writing. The requirement to provide information and invitation in writing applies even if the issues have been dealt with at the hearing.

The practical effect of these court decisions is creating considerable operational difficulties for the tribunals in their ability to comply with the statutory requirement that their hearings be economical and quick as well as fair and just. Thus, delays are being caused by matters that have already been covered exhaustively at tribunal hearings having to be put to the applicants again in writing following the hearing. The effect of the courts’ interpretation of the procedural fairness requirements has led to a highly technical application of the law in circumstances where no practical injustice can be found in the way the tribunals have dealt with a matter. The proposed bill will amend the act to align the technical provisions with a sensible and practical way that the tribunals can provide procedural fairness. The amendments will insert new provisions which will provide a discretion for the tribunals to orally give information and seek comment from the applicant at the time that the applicant is appearing before a tribunal. However, if the tribunals decide not to orally give information and then seek comment from an applicant at hearing, they must do so in writing under existing sections 359A and 424A. The corollary is that if the tribunals do give information and seek comment from an applicant at hearing they will not be required to also do so in writing under the same sections.

Outside of the context of hearings, the tribunals will still be required to provide procedural fairness to applicants in writing. The Senate Standing Committee on Legal and Constitutional Affairs handed down its report into the review provisions bill on 20 February 2007. The committee recommended that the bill be passed with an amendment so that adverse material may only be provided orally at the election of the applicant. However, the government supports the passing of the review provisions bill in its original form. This is because the recommendation would, to a large extent, nullify the objective of the bill to allow the tribunals flexibility in how they give procedural fairness to review applicants. In addition, the committee’s recommendation would add an impractical process and introduce greater complexity to the conduct of tribunal hearings.

The amendments in these bills are designed to ensure the continued safety and security of our nation, tempered by values of justice and fairness. The use of modem digital facial recognition technologies will streamline and improve the security of our future border entry practices. Tightening the provisions for the cessation of special purpose visas in line with all other visa requirements will only assist our border security agencies in providing a safe and secure environment for all Australian residents. And, finally, the review provisions bill will restore the tribunal’s ability to comply with the statutory requirements to provide a review that is fair, just and economical as well as being informal and quick—as was parliament’s original intention.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I understand we are dealing with two bills concurrently, but I rise this evening predominantly to provide comments on the Migration Amendment (Review Provisions) Bill 2006 [2007]. In my examination of this bill, I want to discuss three areas. Firstly, I want to know how this government proposes, through the review provisions bill, to alter the current operation of the merits review bodies known as the Migration Review Tribunal and the Refugee Review Tribunal, or the MRT and the RRT, as they are known in the industry. Then I want to take the opportunity to raise some of the interesting questions that came out of the Senate Standing Committee on Legal and Constitutional Affairs investigation of the act and highlight to the Senate that, of the 15 organisations and relevant stakeholders that made submissions to the inquiry, only the government, it seems, its department and bodies, have found the proposed changes to this act necessary and, what is more, favourable. Finally, I want to examine the fundamental administrative law principles which motivate this bill, with special reference to the continual balancing act between flexibility and maintaining a just and fair merits review system.

Let us have a look at the review provisions bill to identify exactly what it sets out. There are two key elements of the bill. First, the bill will allow the MRT and the RRT to ‘give procedural fairness to review applicants, during a hearing’ by communicating the particulars of any adverse information ‘that the tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review and invite the applicant to comment on or respond to the information’ through oral communication means. Second, the bill provides:

… that the obligation to give an applicant information and invite comment on or a response to the information does not extend to information already provided by the applicant to the Department of Immigration and Multicultural Affairs … as part of the process leading to the decision under review, other than information that the applicant has given orally to the Department …

With regard to the first key element, it was argued by the department and the tribunals in their submissions to the Senate committee inquiry into this bill that the High Court’s interpretation of procedural fairness in what is now known as the SAAP case has placed an undue burden on the MRT and the RRT and has created, according to Minister Ellison, then the minister responsible, serious operational difficulties for the tribunals, as the MRT and the RRT continue to struggle to meet the statutory 90-day limit for finalising decisions.

With regard to the second key element, in lay terms, this is essentially an attempt by the government to remove the requirement to, firstly, deliver the reasons for a decision by the tribunals in writing and, secondly, stop the applicant from providing to the tribunals information previously submitted to the department. So what are the implications of changes of this nature to this system?

This takes me to the second issue I want to raise in the chamber, and that is the response from the relevant stakeholders and the legal minds of this country who presented submissions to our inquiry into this legislation. A cursory examination of the submissions to the inquiry is indicative of the response that this bill has received—that is, only the government department and bodies are supportive of these amendments. All other submissions—let me make that really clear: every other submission we received to this inquiry, including submissions from the broader legal community—demonstrate that there is a very legitimate concern that this bill is simply an attempt by this government to sacrifice procedural fairness and natural justice in the name of flexibility and efficiency.

We heard evidence from pre-eminent legal minds on the area of migration law and administrative law—from well-respected bodies such as the Human Rights and Equal Opportunity Commission, Australian Lawyers for Human Rights, the Refugee Council of Australia and the Law Council of Australia, to name a few. The response of these organisations to the bill was one of grave concern. We were told by Australian Lawyers for Human Rights that this bill ‘represents a regrettable attempt to narrow the scope of the merits review process’ and:

… the Bill fundamentally alters the role of the MRT to the detriment of applicants and the review process more broadly.

The Human Rights Commissioner, Mr Graeme Innes AM, put his view to the committee by stressing that the bill was ‘contrary to the rules of natural justice’ and will lead to unfairness in some cases.

HREOC, in its submission, also stated that, even if the bill does improve efficiency, it is likely to create ‘an unfair process’. In particular, the bill’s ‘reliance on oral communication’ in migration and refugee cases is unfair. This is because there is a grave danger that an applicant may not fully understand the meaning or significance of what they are being told or of what they are responding to. Even when an applicant does understand the case against them, the charges may mean, as HREOC says, that ‘they may not have the chance to fully or adequately put their case to the tribunal’. The Castan Centre for Human Rights Law submitted that the bill’s reliance on oral communication ‘may obfuscate the process and lead to misunderstandings between tribunal and applicant’.

The list of comments indicating concerns with this bill goes on. In fact, I highlighted this to the department when they appeared before the legal and constitutional committee. I highlighted that suggestions include: that speed does not lead to fairness; that there will be flawed decisions in the future; that questions of jurisdictional error will be asked; that there is ambiguity in the use of oral evidence—particularly when you may not be able to speak the language or when English may be your second, third or even fourth language, if you understand it at all; that interpretive skills are lacking in some cases, and we heard many evidences of that during this inquiry; and that there are numerous inconsistencies between tribunal members in the way they conduct the tribunal, in the way they handle cases and in the way they inconsistently deal with individual cases.

I clearly remember asking the department during the hearing that, if so many eminent lawyers and legal practitioners in this field do not believe that the changes to this act are in the best interests of the people to whom they are most applicable, why was it that the department’s submission was the only one we had before us that responded positively to such changes. I think the answer was quite clearly inadequate. The response of the department to these concerns was simply:

If you follow the logic of a lot of the submissions you have received we would not have hearings at all because everything could be done in writing.

I think that was a pretty poor response, but it was indicative of most of the responses from the department. They did not try to provide a factual response to moot the points raised, and they failed to engage with most of the concerns raised by our non-government legal and academic minds in this country.

All of the non-governmental agencies and groups resoundingly agreed that, under the status quo, if you were to measure procedural fairness against administrative efficiency, the scales are currently equally balanced. If you were to add further weight to procedural fairness, this would tip the scales and result in undue administrative complexities and red tape. But, on the other hand, if you were to add to administrative efficiency then you would tip the scales the other way and compromise any attempt to establish a just and fair outcome for applicants.

I believe that, as the workloads increase for the MRT and the RRT, the solution is not to add or subtract from either procedural fairness or administrative efficiency but to get a better set of scales that balances the outcome and benefits both the tribunal and the applicant.

What I believe is needed is the adequate provision of resources to the MRT and the RRT by this government. That is really the nub of the problem here; not amending legislation so that applicants are unduly biased or disadvantaged in order to cover up the inefficiencies of the MRT and the RRT. By looking at the annual reports for the tribunals, it can be observed that staffing levels are under budget. For example, 73 members of the tribunal are part time and only 24 are full time. The reports also show that the tribunal, which is predominately staffed by part-time employees, is required to adjudicate many of the department’s mishandled decisions. In fact, it was put to us at the inquiry that more than half of the department’s decisions are overturned. The tribunals surely need to have better resources available to them, rather than simply moving resources back and forth between the MRT to the RRT, like a little butter that is spread over too much bread. I believe this is completely unacceptable.

What we have got here is a government that is not dealing with the real issues at heart: the under-resourcing of the MRT and the RRT, the inadequacy of the number of part-time members of the tribunal and the total inadequacy of the decision-making processes and the outcomes within the department. So what this government is doing is in line with its philosophy of always attacking the victim, of blaming the victim, of having a go at these people who are seeking to prove their refugee or migration status. They are having a go at these guys now and, instead of being required to provide everything they want to communicate to them in writing, now there is an option to do it orally.

It is no wonder that the Senate committee’s report recommended that the main guts of this legislation—the main elements of this legislation—be deleted. Although it is only three lines, the committee recommended that the proposed sections 359AA and 424AA be amended. That might seem fairly innocuous, but that is really the hub of this legislation. It goes to the fact that adverse material may only be provided orally at the election of the applicant. The Senate committee wanted to put the onus back on the applicant, to say that if they actually requested it orally—that is, they understood it and they were happy to have it orally—so be it. But that is not the way this government wants to operate, and I have no doubt that they will not pick up the recommendation of the Senate committee report.

What can we observe of this government from the introduction of this bill? We can see that this government has failed to address the big picture problems. It is not introducing a bill to properly resource the MRT and the RRT. It is not introducing a bill which will reduce the amount of inaccurate decisions made by the department. Instead, this government is only tinkering at the edges. The government is introducing a bandaid solution at the cost of procedural fairness and natural justice.

This takes me on to my third and final point, which goes to the heart of the legal principles that are being undermined by this bill and this government. I stress that I support the tribunals in the exercise of their responsibilities, and you would have to concede that the workload of the tribunals is significant. I also believe the tribunals should be just, fair, informal, cost-efficient and speedy, in ways that cannot be facilitated by the judicial system. However, I do not believe that procedural fairness or natural justice need to be compromised in this manner for the sake of speed.

It has been the express purpose of this bill to attempt to give the tribunal the ability to opt out of the fundamental legal principles upheld by the High Court in the SAAP v MIMIA case. The Legal Aid Commission of NSW stated in its submission that the bill removes an important protection for applicants that was established by that case:

... applicants are notified in writing of information ... which can be used to refuse the review application.

It is rightly pointed out by the commission:

Natural justice requires that applicants are afforded a meaningful opportunity to respond to adverse information.

I believe that this is a fundamental tenet of our legal system. However, the government wishes to fly in the face of this legal principle by introducing an oral process, a process which the commission believes:

... will not allow many applicants the opportunity to comment on the [Tribunal’s] concerns.

I know that in defending this legislation the minister will say that that is not the case, but one needs to look at the critical comments we received about the inadequacies of some of the interpreters that are used, the lack of understanding of English by some of the applicants and also just the cultural background of some of the applicants, who are pretty stressed. By the time your case gets to the MRT or the RRT, you are pretty stressed about this.

There was evidence that a lot of applicants actually just agree and say ‘yes’ to anything that is said to them, mainly those who come from South-East Asia and Asia. Because of their cultural background they are not used to challenging or questioning a body of the status of the tribunal or questioning a government. In fact, a lot of them have been through torture and trauma and so, out of politeness, because they do not know otherwise or because they are too frightened to say otherwise, they will not question decisions. So to now put the onus back on the applicant is an extremely unfair way to deal with this situation.

Natural justice and procedural fairness are long-held tenets of our legal system. It should be an upheld and maintained right that every person should be given the opportunity as best as practicable, whether that is orally or in writing, to receive adverse information about their application for review in a form which they desire and can best understand. However, this government tarnishes natural justice with this bill.

The Migration Review Tribunal and the Refugee Review Tribunal by the nature of their jurisdiction have a significant burden to discharge. Not only do the tribunals have a responsibility to make the correct or preferable decision; they have to fulfil this responsibility in an environment where they are dealing with many applicants who have extremely limited or no English language skills. Similarly, the tribunal is also communicating with applicants with very little experience in dealing with bureaucracies in democratic nations. Instead—and this is particularly relevant to the RRT—they may have only experienced dictatorial regimes, as I said before, and may come from a background or a culture where it is considered polite to simply agree with authority figures.

To implement oral communication as a means of delivering outcomes is an obvious attempt to discharge this responsibility in favour of expediency. Rather than recognising that language and cultural barriers create a gap that needs to be filled, the tribunals have tried to ignore their responsibilities in this area and have failed to see the bigger-picture justice issues that arise from this legislation.

It should be the responsibility of the tribunal to stand in the shoes of the government department and of the applicant, and also to take a de novo, or fresh, approach to decisions under review so that the correct or preferable decision is made. It is not acceptable that the obligation of the tribunal to hear, examine and consider correspondence from the applicant to the department be removed, as the tribunal must be able to review all of the factors before it and respond to the applicant in a manner which reflects all considerations that are relevant to the case at hand and in accordance with procedural fairness rules. However, this government through this bill undermines the function of the MRT and the RRT and waters down procedural fairness requirements in order to ensure that the MRT and the RRT can fulfil their statutory obligations without adequate resources.

Let’s be fundamentally clear about this. This is about the government getting around or getting out of the requirement in the decision of the SAAP case, where it was ruled that there were serious operational difficulties for the tribunal and it must provide communication in writing to the applicants. This government wants to step around that decision by the introduction of this bill. Also, this is another way of papering over the cracks of the inefficiencies of the department, which we have seen time and time again, particularly in the last two years. You have a situation where most of the decisions of the department are overturned—and we know that funding has shifted between the MRT and the RRT, instead of providing adequate funding for both tribunals, and also that a lot of people are on those tribunals in a part-time rather than a full-time capacity.

This bill is flawed. It is purely a bandaid solution by this government to a significant resourcing issue that the tribunal faces. It shows that the government is uninterested in correcting the poor track record of the department on migration and refugee applications. And it shows the callous disregard that this government has not only for legal principles but also for applicants who seek to migrate to this country under this process.

Kerry Nettle (NSW, Australian Greens) Share this | Link to 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.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

in reply—I thank senators for their contributions to the second reading debate on the Migration Amendment (Review Provisions) Bill 2006 [2007] and the Migration Amendment (Border Integrity) Bill 2007. In order to achieve some brevity, I seek leave to incorporate my summing-up speech.

Leave granted.

The speech read as follows—

I thank the Senators for their contributions to the second reading debate on these bills.

Australia has the most effective and comprehensive entry system in the world. The measures contained in the Border Integrity Bill seek to further strengthen this entry system, and maintain Australia’s position at the forefront of border control technology and initiatives.

The automated border processing system “Smartgate” takes advantage of new passport technology and facial recognition technology to enhance the way in which passengers’ identities are verified. These new processes will aid in combating identity fraud and act as a deterrent to the use of forged or stolen passports. Furthermore, automated clearance at the border will allow greater volumes of passengers to be processed and decrease passenger processing time, while enhancing the integrity of border processing.

The Border Integrity Bill also amends Special Purpose Visas. The Minister can issue a declaration which has the effect of ceasing a person’s Special Purpose Visa or preventing the grant of a Special Purpose Visa to a person. The Bill will allow the Minister to specify a time at which the declaration will take effect. This will provide the department with the authority to better manage the Special Purpose Visa client base.

The measures proposed in the Border Integrity Bill are designed to further strengthen the integrity of Australia’s borders, whilst also improving the efficiency of immigration processes and administration.

The Review Provisions Bill strikes a practical balance between continuing to ensure that review applicants receive procedural fairness and ensuring that the Tribunals are able to provide procedural fairness in a way which is sufficiently flexible to be appropriate in each individual case. This is achieved by providing a discretion to the Tribunals to deal with adverse information orally at a hearing. The Bill also clarifies that adverse information which has already been provided by the applicant (other than orally) for the purposes of the decision under review, does not have to be given to the applicant for comment or response.

The Senate Standing Committee on Legal and Constitutional Affairs handed down its report on the Review Provisions Bill on 20 February 2007. I wish to record my thanks to the Committee for the valuable work which it has done throughout its inquiry into the Bill. I would also like to thank those people and organisations who provided thoughtful and considered input to the Committee.

The Committee recommended that the Bill be passed with an amendment so that adverse material may only be provided orally at hearing at the election of the applicant. However, the Government supports the passing of the Review Provisions Bill in its original form. This is because the recommendation would, to a large extent, nullify the objective of the Bill to allow the Tribunals flexibility in how they give procedural fairness to review applicants.

The Committee’s proposed amendment would remove the ability of the Tribunals to control the process by which adverse information is provided to applicants. Those applicants who wish to deliberately delay the review process could simply refuse to respond to adverse information put to them orally at hearing, even where they are perfectly capable of doing so. The Government’s long-standing objective of maintaining the integrity of the migration review process could be undermined because the Committee’s proposed amendment has the potential to be open to such abuse. In addition, the Committee’s recommendation would add an impractical process and introduce greater complexity to the conduct of Tribunal hearings.

Finally, I would remind the Senate that this Bill does not affect an applicant’s right to seek judicial review of a Tribunal decision. Access to the Courts remains intact.

I commend these Bills to the Senate.

Question agreed to.

Bills read a second time.

Ordered that consideration of the bills in committee of the whole be made an order of the day for a later hour.