BILLS;Migration Amendment (Strengthening Biometrics Integrity) Bill 2015;Second Reading – 10 Aug 2015

I would like to take a few moments today to add my contribution to the debate about the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015.

The collection of personal identifiers at the border is an important part of Australia’s national security framework. It is important that we know precisely who is entering Australia and leaving Australia at any given time. The purpose of this bill is to consolidate, simplify and enhance the provisions within the Migration Act relating to the collection of personal identifiers, such as fingerprints and iris scans. The bill makes no change to the types of biometric information that can be collected, as this was done previously by the foreign fighters act. Instead it provides greater flexibility for the Department of Immigration and Border Protection in respect to the tools used to collect the information. For example, this bill would allow a mobile, hand-held scanner for collecting fingerprints. This bill also makes no change to the ‘triggers’ that would allow a customs officer to request additional personal identifiers.

The majority of Australian citizens will not be impacted by this bill and will not be required to provide fingerprints or iris scans on entering or departing Australia. DIBP will not retain the biometric information of Australian citizens; it will only be used for identity verification purposes. And, while updating the tools available at our borders is important, this must be done in a way that does not unduly infringe on personal rights or privacy.

The Senate Legal and Constitutional Affairs Legislation Committee, of which I am a member, inquired into this bill. Labor senators of this committee believe that the bill can be improved. I would like to say from the outset that both the majority committee report, and Labor senators’ dissenting report, made recommendations regarding this bill. The committee received a number of expert submissions which expressed concerns with elements of this bill, and this informed the committee’s thinking. Consequently, Labor will be putting forward two amendments to this bill and I urge the Senate to support these sensible amendments. I will take a few moments to talk about the bill before moving on to the Labor amendments.

For those that are not aware, the field of biometrics relates to technologies that measure and analyse characteristics of the human body for identity authentication purposes. The explanatory memorandum to the bill outlines the nature of these technologies:

A biometric (termed ‘personal identifier’ in the [Migration] Act), is a unique identifier that is based on individual physical characteristics, such as facial image, fingerprints and iris, which can be digitised into a biometric template for automated storage and checking.

The bill consists of several introductory clauses and one schedule containing amendments to the Migration Act 1958. The explanatory memorandum states that the bill seeks to amend the Migration Act in order to ‘implement a number of reforms which will consolidate and simplify the provisions relating to the collection of personal identifiers’

The term ‘personal identifier’ is defined in subsection 5A(1) of the Migration Act as any of the following:

(a) fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);

(b) a measurement of a person’s height and weight;

(c) a photograph or other image of a person’s face and shoulders;

(d) an audio or a video recording of a person (other than a video recording under section 261AJ);

(e) an iris scan;

(f) a person’s signature;

(g) any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914 .

The explanatory memorandum details a non-exhaustive list of the types of persons who can be required to provide a personal identifier under proposed section 257A, including persons who are:

unauthorised maritime arrivals and have not lodged an application for a visa;

non-citizens who are applicants for temporary or permanent protection visas, or any other visa of a class that is designated as a class of humanitarian visas;

non-citizens who are applicants for any other class of visa created under the Migration Act or the Migration Regulations;

visa holders, who are the subject of identity fraud allegations;

persons (citizens and non-citizens) at the border seeking to enter or depart Australia.

As I said earlier, Labor members of the committee had concerns with specific ways the bill is being implemented, which I will outline. Labor senators on the committee hold specific concerns around the lack of safeguards in the legislation for minors and incapable persons, particularly that the consent or presence of a parent, guardian or independent person will not be required. Our comments noted:

… the Law Council, raised serious concerns on these matters, suggesting that:

… safeguards should be implemented in terms of guidelines to make sure that biometric information that is collected is done so in a respectful manner, and also that an independent guardian be appointed for unaccompanied minors.

Labor’s amendments to the bill will ensure that when children or incapable persons are required to provide biometric information without the consent of guardians, this will be done in a way that maintains the dignity of that person. In these circumstances it would be appropriate that female officers be involved in undertaking these processes when we are talking about girls. It would also be appropriate that people with appropriate skills in working with minors are those who are involved in performing this work.

Evidence presented by the Law Council of Australia highlighted the lack of regulatory powers of the Privacy Commissioner. Labor senators on the committee support suggestions from Ms Ganopolsky of the Law Council that the matter has not yet been adequately tested and therefore should warrant further investigation and consideration before legislation in the bill.

Labor senators on the committee recommended amendments to the bill that provide for additional security measures reflecting the sensitivity of the data collected, especially a requirement to notify the individual and the Privacy Commissioner for data breach notification, should any breach occur.

The Law Council of Australia in its submission argued:

A large repository of biometric information increases the risk and possible consequences of a data breach. The large volume of biometric information held by the Government will be an attractive resource for people with malicious intent. Notification to individuals affected by a data breach involving biometric information would be essential for them to seek legal remedies and mitigate any possible unintended consequences.

Labor will seek to amend the bill to ensure that where a data breach occurs there is a requirement to notify the individual concerned and the Privacy Commissioner. Biometric data once released cannot be replaced like other documented data. The Australian Privacy Foundation noted in its submission:

The costs of a data breach are extraordinarily high concerning privacy breaches associated with biometric identifiers. Unlike other documents that can potentially be replaced or changed (such as a passport, credit card, or tax file number) a data/privacy breach that includes biometric identifiers means that when a breach occurs the personal identifiers of Australian and non-Australians will be permanently misplaced.

Consequently, Labor senators of the committee believe it is only appropriate that people are notified if their data is breached.

This is an important and complex bill. It seeks to improve protections at Australia’s borders and consequently improve the safety of the Australian population. However, while doing so, we must ensure that the biometric data of citizens and noncitizens are kept safe and secure. We must ensure that privacy and data safety are managed correctly, and we must ensure that people are treated with respect and dignity when they have biometric data taken. Labor’s amendments would significantly improve this bill and I urge the Senate to support these amendments.