Bills Digest no. 57 2006–07
Migration Amendment (Border Integrity) Bill
2006
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Financial Implications
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Migration
Amendment (Border Integrity) Bill 2006
Date
introduced: 11
October 2006
House: House of Representatives
Portfolio: Immigration and Multicultural
Affairs
Commencement:
Sections 1 to 3 on Royal
Assent; Schedules 1 to 3 on a day fixed by proclamation or 6 months
after date of Royal Assent.
The purpose of the Bill is:
-
to enable the Minister to specify a time either within the day a
declaration is made (rather than midnight) or at a specified future
time when a special purpose visa will cease to be in effect,
-
to enable certain persons with an eligible passport to choose an
automated system or a clearance officer in immigration clearance
and to define who may use an automated system
Background
Schedule 1 amends the provisions relating to subsection 33(9) of
the Migration Act 1958 which allows the Minister to make
declarations that it is undesirable for a person or persons in a
class of persons to travel to, enter or remain in Australia.
Amendments are made to section 33(5) of the Migration Act which
deals with visas ceasing to have effect.
Special purpose visas do not require the person to apply for a
visa, that is, there is no visa application process as the visa is
granted by the operation of law to non-citizens who come within
either a prescribed class of persons, or are a person, or class of
persons, declared by the Minister to hold special purpose visas.
(1) The Bill provides that the Minister can specify a
time when the declaration will take effect. At present the special
purpose visa does not cease until midnight on the day on which the
declaration is made.
Special purpose visas are a class of substantive temporary
visas. Section 33(2)(a) of the Migration Act 1958 provides
that a non-citizen is taken to have been granted a special purpose
visa if the person has a prescribed status, or who is a member of a
prescribed class, or the Minister declares that a non-citizen is
taken to have been granted a special purpose visa. Regulation
2.40(1) prescribes the classes of persons to whom such visas are
granted. Other classes of persons are also prescribed in other
sub-regulations of R2.40. The persons having a prescribed status
are as follows:
2.40 Persons having a prescribed status special purpose visas
(Act, s 33 (2) (a))
Persons who hold prescribed status
(1) For the purposes of paragraph 33 (2) (a) of the Act (which
deals with persons who are taken to have been granted special
purpose visas), and subject to this regulation, each non-citizen
who is included in one of the following classes of person has a
prescribed status:
(a) members of the Royal Family;
(b) members of the Royal party;
(c) guests of Government;
(d) SOFA forces members; (Status of Forces Agreement defined in
R 1.03)
(e) SOFA forces civilian component members; (Status of Forces
Agreement defined in R. 1.03)
(f) Asia-Pacific forces members;
(g) Commonwealth forces members;
(h) foreign armed forces dependants;
(j) foreign naval forces members;
(k) members of the crew of non-military ships (other than ships
being imported into Australia);
(kaa) spouses and dependent children of members of the crew of
non-military ships (other than ships being imported into
Australia);
(ka) members of the crew of ships being imported into
Australia;
(l) airline positioning crew members;
(m) airline crew members;
(n) transit passengers who belong to a class of persons
specified in a Gazette Notice for the purposes of this
paragraph;
(p) persons visiting Macquarie Island;
(q) children born in Australia:
(i) of a mother who at the time of the birth holds a special
purpose visa, if only the mother is in Australia at that time;
or
(ii) to parents both of whom, at the time of the birth, hold
special purpose visas, if at that time both parents are in
Australia;
(t) Indonesian traditional fishermen visiting the Territory of
Ashmore and Cartier Islands.
The bill provides that selected New Zealand citizens arriving in
Australia will be granted a special category visa by means of an
automated system in immigration clearance. Such persons will
require an ePassport.
Special category visas, subclass 444 is a temporary visa
enabling New Zealand citizens to be lawful non-citizens. Special
category visas may be granted in immigration clearance or in the
migration zone after immigration clearance. The criteria are that
the person must be a New Zealand citizen and hold a New Zealand
passport that is in force and the person is neither a behaviour
concern non-citizen nor a health concern non-citizen.
The Act also makes provision for other classes of persons for
whom a visa of another class would be inappropriate (s.32(2)(b) and
(c)).
The current Bill amends and introduces provisions to allow
citizens and non-citizens to use an automated system in immigration
clearance. Certain past legislative developments enable the
operation of the current Bill which allows persons who are citizens
or non-citizens to use an automated system when entering or leaving
Australia. The Migration Legislation Amendment (Electronic
Transactions and Methods of Notification) Act 2001 enabled the
Migration Act 1958 and the Australian Citizenship Act
1948 to be brought into line with the Electronic
Transactions Act 1999. The purpose of that Act was to remove
legal obstacles to the use of electronic transactions. It ensured
that transactions were not invalid merely because they took place
by means of an electronic form of communication. The Act provides a
framework to facilitate the use of electronic transactions, to
promote business and community confidence in such transactions and
to enable business and the community to use electronic
communications in their dealings with government.(2) The
Electronic Transactions Act applied to all Commonwealth legislation
from 1 July 2001.
The Migration Legislation Amendment (Electronic Transactions and
Methods of Notification) Act established a framework to allow for
the use of computer programs to make decisions in the migration and
citizenship context.(3) The Explanatory Memorandum to
this Bill explains the insertion of section 495A by this Act into
the Migration Act and its significance in enabling decisions to be
made electronically.
In 2003 the Migration Legislation Amendment (Identification
and Authentication) Bill 2003 (now Act no. 2 of 2004) was
introduced into the House of Representatives on 26 June 2003. See
the Bills
Digest for detailed information concerning the introduction of
provisions relating to biometric identifiers and the setting up of
a personal identifiers database. The Bill introduced a definition
of personal identifiers to the Migration Act and the
general circumstances in which non-citizens may be required to
supply personal identifiers and the safeguards applying to those
procedures. The collection of those identifiers would then form a
database of such information. The Bill also included privacy
safeguards.
The use of Smartgate is dependent on having an eligible
passport, in other words an ePassport. The bill refers to the fact
that an eligible passport will be determined by proposed
new section 175A. The use of these automated systems by
travellers will rely on the ePassport.
The biometrically-enabled ePassport was launched on 25 October
2005. The passport has a microchip embedded in the centre page
which contains the digitised facial image and personal details of
the passport holder. The microchip can be read electronically and
will enable the implementation of cutting-edge facial recognition
technology.(4) As ePassport processing facilities are
progressively introduced in Australia and at overseas airports, the
new technology will strengthen border security and streamline the
movement of passengers through airports.(5)
The advantages of the ePassport over the previous Australian
passport as stated on the Department of Foreign Affairs and Trade
website are stated as follows:
-
provides greater protection against fraudulent misuse and
tampering,
-
reduces the risk of identity fraud, currently estimated to cost
the Australian economy more than $1 billion each year,
-
enhances the protection of Australia s border through speedy and
secure verification of incoming Australian passport
holders.(6)
Use of ePassports is being introduced internationally. The
Australian ePassport complies with changes in the Visa Waiver
program for example. The Visa Waiver program in the United States
enables travellers from certain countries to travel to the United
States for tourism or business purposes and who stay for 90 days or
less to do so without a visa. Australia is a participating country
in the program.(7) The Australian ePassport complies
with new US requirements for ePassports introduced on 26 October
2006. The Australian ePassport has been extensively tested at Los
Angeles International Airport and has met all US requirements. It
has received initial US Department of Homeland Security
Certification.(8)
The Minister for Immigration and Multicultural Affairs and the
Minister for Justice and Customs in a joint press release stated
that the legislation will allow for the introduction of the
SmartGate system that will begin operations in selected Australian
international airports from early in 2007.(9)
The Australian Customs Service annual report 2005-06 states that
SmartGate is an automated border processing system which enables
travellers with the appropriate eligible passports to move through
passport control by means of using SmartGate. The focus at present
is to implement the full version of SmartGate known as SmartGate
Series 1 for incoming travellers. The system will be progressively
implemented in 2007 commencing in Brisbane and will be available
initially to holders of Australian ePassports. Subsequently it will
be made available to holders of eligible passports from other
countries.
The SmartGate system was trialled initially. The trial was
launched in November 2002 at Sydney International Airport with
Qantas International crew. The system was installed in Melbourne
International Airport in 2004 and Qantas Premium Frequent Flyers
were invited to enrol. Over 10,000 trial users conducted some
295,000 transactions during the trial period. The trial ended on 30
June 2005.(10)
On the strength of this successful trial, in the
2004 Budget the Government pledged $61.7 million over four years
towards the phased introduction of biometric technology to improve
identity management for border processing at Australia s major
international airports. (11)
There have been criticisms of the SmartGate system in relation
to the reliability of the technology. According to certain media
reports, industry insiders have identified gaps in biometrics such
as excessive error rates, a poor ability to find database matches
and high sensitivity to varying conditions. A senior policy analyst
at the White House Office of Science and Technology has estimated
that the accuracy rate for facial scanning is 90 per cent, for
fingerprints it s 99 per cent and for iris scanning it s 97 per
cent. (12)
Some question the reliability and effectiveness of the SmartGate
technology. Dr Roger Clarke, a visiting fellow in the faculty of
Engineering and Information Technology at the Australian National
University commented in a recent interview that SmartGate is
destined to fail because it s built on the assumption that a person
s face will always appear the same, when in reality that s rarely
the case. (13) He says that it is quite likely that
actions like laughing and smiling may confuse the
device.(14) Australian Customs maintains that although
there were problems initially, by the time SmartGate comes into
full operation next year, all the creases will be ironed out.
(15) In the same interview the National Director of
Border Intelligence for the Australian Customs Service commented
that the technology is urgently needed to deal with the increasing
numbers arriving at Australian airports. The Director says that the
facial recognition technology has high accuracy
levels.(16) Senator Joe Ludwig Shadow Minister for
Justice and Customs, also commented if it s all about just cutting
labour, then it s not a very good idea and what it might do is add
extra labour intensive work because if the technology doesn t work,
people will queue and then they ll have to be processed manually in
any event. And that doesn t seem smart to me. (17)
In 2005, the Office of the Privacy Commissioner conducted an
audit of the ePassport and SmartGate trial. The purpose was to find
out whether Customs and the Department of Foreign Affairs were
handling the personal information collected in the course of the
ePassport and SmartGate trials in accordance with the Information
Privacy Principles (IPPs) of the Privacy Act 1988.
Generally it was found that the personal information collected was
managed in accordance with the IPPs. It was thought that
potentially significant changes are presented by the contactless
chip in Australian passports and the use of images on those
passports for facial recognition at the border by SmartGate. The
Auditors therefore recommended a cautious approach in the future
implementation of ePassports and associated biometric systems,
allowing for significant data entry controls and limitations on
information use. The Department of Foreign Affairs and Trade has
recently increased security controls built into the ePassport
chip.(18)
In 2004-05 the Australian Government provided $9.7 million
dollars to DFAT, the Australian Customs Service and the Department
of Immigration and Multicultural and Indigenous Affairs for the
development of biometric technologies and their application to
border control.(19)
The Australian Government in the 2005-06 budget allocated $74.6
million dollars for the phased introduction of biometric technology
to improve identity management for border processing at Australia s
international airports It is anticipated that the efficiencies
arising from automated border processing will achieve savings of
$12.9 million dollars over this period, resulting in a fiscal
impact on the Budget of $61.7 million dollars. (20)
Items 1 and 2, proposed new subparagraphs 33(5)(a)(iii)
and 33(5)(b)(v) provide that declarations by the Minister
under subsection 33(9) will come into effect at a time specified in
the declaration.
Item 3, proposed new subsection 33(5A) provides
that a declaration made by the Minister will take effect at a time
specified in the declaration or if there is no time specified in
the declaration, the end of the day on which the declaration is
made.
Item 4 relates to the application of these
provisions which only apply to declarations made after the
commencement of this Act.
Item 1 inserts a definition of authorised
system which refers to an automated system authorised by the
Minister or the Secretary. Item 7 inserts a
definition of clearance authority which means
either a clearance officer or an authorised system which is an
automated system.
Section 172 of the Migration Act requires all persons entering
Australia, whether citizens or non-citizens, to be immigration
cleared. Persons are immigration cleared if they enter Australia at
a port or a place other than a port and if they comply with the
requirements of section 166 and leave from the port or prescribed
place at which they complied with entry conditions. Section 166
relates to the evidence required of persons entering the country to
verify their identity.
Item 9 repeals section 166 and replaces it with
proposed new section 166 Persons entering to
present certain evidence of identity etc. Proposed new
subsection 166(1)(a) requires that any person who enters
Australia must present evidence of identity which may include
personal identifiers. A citizen must present an Australian passport
or other evidence of citizenship. A non-citizen must present
evidence of their identity and an appropriate visa.
Proposed new subsection 166(1)(b) provides that
both citizens and non-citizens provide any information required by
the Act or regulations, apart from personal identifiers, to the
clearance officer or the authorised system. Proposed new
subsection 166(1)(c) provides that
non-citizens must comply with any requirement to provide personal
identifiers to the clearance officer in accordance with subsection
(5) before being immigration cleared, that is, leaving a port,
prescribed place or being granted a substantive visa.
Proposed new subsection 166(2) provides that a
person may choose only to present evidence or information to an
automated system if the person has an eligible passport and that no
further information or evidence or personal identifiers are
required either by the automated system or the clearance officer.
If a person is required to present further evidence or information,
a clearance officer will determine whether the person has complied
with subsection 166(1).
Proposed new subsection 166(5) provides a list
of the personal identifiers which a person may be required to
present or provide. They include a photograph, a signature, any
personal identifier contained in a person s passport or travel
documents or any other prescribed personal identifiers.
Proposed new subsection 166(6) provides that
paragraph 166(1)(c) does not limit the clearance authority s power
under subparagraph 166(1)(a)(ii) to require a non-citizen to
present evidence of identity which may include personal
identifiers. Proposed new subsection 166(7)
provides that a non-citizen will not have complied with a
requirement under paragraph (1)(c) unless the person has provided
the personal identifiers by means of identification tests specified
under section 5D and carried out by an authorised officer.
Proposed new subsection 166(8) provides an
exception to new subsection 166(7) where a non-citizen can provide
prescribed personal identifiers other than by identification tests
and complies with further requirements for personal
identifiers.
Section 170 deals with certain persons, either citizens or
non-citizens who travel between ports in Australia on a foreign
vessel and who may be required to present evidence to a clearance
officer. Item 14 proposed new subsection 170(2AA)
provides that a person may present evidence or information to an
authorised system only if the person holds an eligible passport and
the person chooses to provide that information to the authorised
system; and either before the person completes immigration
clearance, that is before that person leaves the port, the person
is not required to present any further information, evidence or
personal identifiers, or a clearance officer has determined that
they have complied with subsection 170(1). The wording of
proposed new subsection 170(2AA) is somewhat unclear logically.
Subsection 170(2AA) is meant to indicate how a person complies with
170(1) when using the automated system. The meaning and intention
is explained more clearly in the Explanatory
Memorandum.
The purpose of new subsection 170(2AA) is to
provide that, where a person has used the automated system to
satisfy the requirements under subsection 170(1), a clearance
officer can undo that person s previous satisfaction of those
requirements where that clearance officer believes it necessary to
ask the person for further information (irrespective of whether the
automated system successfully processed the person). An example of
this might be where the automated system has incorrectly processed
a person due to a computer error, and a clearance officer wishes to
manually process that person again. (21)
Section 172(3) deals with a person who is refused immigration
clearance and is with a clearance officer for the purposes of s.166
(Person who enters Australia to present certain evidence of
identity) and where a person satisfies one or more of the following
criteria set out in item 20. Item 20 substitutes paragraph
172(3)(b) where a person has his or her visa cancelled,
the person refuses or is unable to present to the clearance officer
evidence referred to in paragraph 166(1)(a) (passport or prescribed
evidence of identity, visa); the person refuses or is unable to
provide information to the clearance officer referred to in
paragraph 166(1)(b) (any information other than personal
identifiers); the person refuses or is unable to provide one or
more personal identifiers referred to in paragraph 166(1)(c)
(photograph or other image of the person s face and shoulders,
signature, any other personal identifier contained in the person s
passport or any other prescribed personal identifier).
Item 24 Section 175 relates to persons who are
about to leave Australia. Proposed new
subsection 175(2AA) provides for who may use an
authorised system when leaving the country. As with other similar
provisions, the person is required to hold an eligible passport,
the person chooses to present evidence of identity and provide
information to the automated system rather than the clearance
officer, and before the person leaves Australia, neither the
automated system or the clearance officer requires the person to
present or provide evidence, information or personal identifiers to
a clearance officer, or if the person is required to do so, that
the clearance officer has subsequently determined that the person
has complied with subsection (1). A similar problem exists
with subsection 175(2AA) as with subsection 170(2AA).
The wording of proposed new subsection 175(2AA) is somewhat
unclear logically. Subsection 175(2AA) is meant to indicate how a
person complies with 175(1) when using the automated system. The
meaning and intention is explained more clearly in the Explanatory
Memorandum.
Proposed new section 175A in item 27 provides
that the Minister or the Secretary may by means of a legislative
instrument, determine what an eligible passport will be.
Item 36 Transitional Instruments
The table contained in this item provides for certain
regulations made previously under the paragraphs or subsections
indicated will continue in force under the new paragraph and
subsection numbers as indicated in the table. Regulations made
under the old provisions are taken as having been made under the
equivalent new provisions. The Explanatory Memorandum points out
that the regulations do not have to be remade.
Item 2 proposed new subsection 32(3) provides
that a New Zealand citizen may present a New Zealand passport to an
automated system if the New Zealand passport is an eligible
passport and the person chooses to present the passport to an
automated system rather than an officer. Before the special
category visa is granted, the New Zealand citizen is not required
to be manually processed by an officer.
Concluding comments
This bill enables the implementation of SmartGate at the border.
Other countries have decided to adopt biometric systems in areas
such as customs, social services and health. They include Britain,
the United States, Germany, Israel, Brazil and Singapore. This will
place Australia within that group.
-
Explanatory Memorandum, Migration Amendment (Border Integrity)
Bill 2006, p. 2
-
Mark Tapley, Electronic Transactions Bill 1999 , Bills
Digest, no. 64, Parliamentary Library, Canberra,
1999-2000.
-
Hon Philip Ruddock, Minister for Immigration and Multicultural
Affairs, Second reading speech: Migration Legislation Amendment
(Electronic Transactions and Methods of Notification) Bill 2001 ,
House of Representatives, Debates, 5 April 2001.
-
Media release, Hon Alexander Downer MP Minister for Foreign
Affairs, 25 October 2005.
-
ibid
-
Department of Foreign Affairs and Trade, The Australian
ePassport, www.dfat.gov.au/dept/passports/
-
US Department of State, www.travel.state.gov./visa/temp/without/without_1990.html
-
Department of Foreign Affairs and Trade, www.dfat.gov.au/dept/passports/
-
Senator Hon Amanda Vanstone and Senator Hon Chris Ellison,
Border Integrity Bill further Strengthens Security, media release,
11 October 2006.
-
Australian Customs Service, Annual Report 2005-06
-
ibid
-
Helene Zampetakis, Biometric security gets the nod and a wink ,
Australian Financial Review, 5 September 2006 p.4
-
Biometric
SmartGate system to be introduced to Australian airports, PM,
Friday 5 May 2006, reporter Nick Dole.
-
ibid
-
ibid
-
ibid
-
ibid
-
Office of the Privacy Commissioner, ePassport
& SmartGate Trial Department of Foreign Affairs and Trade
and Australian Customs Service, Unclassified final audit report,
October 2005, p. 7
-
ibid, p. 5
-
Attorney-General s Portfolio 2005-06 Budget, Protecting
Australia s Borders, Sheet no.5, www.budget.gov.au
-
Explanatory Memorandum, Migration Amendment (Border Integrity)
Bill 2006, p. 17 18.
Moira Coombs
27 November 2006
Bills Digest Service
Parliamentary Library
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ISSN 1328-8091
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