Bills Digest no. 111 2014–15
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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.
Mary Anne Neilsen
Law and Bills Digest Section
4 June 2015
of the Bill
Policy position of non-government parties/independents
Position of major interest groups
Statement of Compatibility with Human Rights
Key issues and provisions
Date introduced: 5
House: House of
and Border Protection
substantive provisions commence on proclamation or the day after six months
after Royal Assent, whichever is the sooner.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
The purpose of the Migration Amendment (Strengthening
Biometrics Integrity) Bill 2015 (the Bill) is to consolidate and strengthen the
legislative framework for the collection of personal identifiers under the Migration
Specifically the Bill amends the Migration Act to:
- provide a single broad discretionary power to collect one or more
personal identifiers from non-citizens and the same broad collection power with
regard to citizens at the border
- enable flexibility on the types of personal identifiers that may be
required, the circumstances in which they may be collected, and the places
where they may be collected
- enable personal identifiers to be provided by an identification test
or by another way specified by the minister or an officer of the Department of
Immigration and Border Protection (Department)
- enable personal identifiers to be collected from minors and
incapable persons under the new broad collection power without the need to
obtain consent, or require the presence of a parent, guardian or independent
person during the collection and
- remove redundant provisions resulting from the above amendments.
Biometrics and the Migration Act
A biometric—termed ‘personal identifiers’ in the Migration
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.
Biometrics are more accurate than document based checks of
biographic detail, such as name, date of birth and nationality because they are
relatively stable over time and are significantly more difficult to forge. Biometric
information does not of itself identify an individual. The usefulness of a
biometric record is when it can be identified as belonging to an individual by
some additional information or when it can be compared against a similar record
A biometric regime for migration purposes was first
established by the enactment of the Migration Legislation Amendment
(Identification and Authentication) Act 2004 (the 2004 Act).
The operative provisions of that Act amended the Migration Act and came
into force in August 2004. The 2004 Act was significant in providing for
the collection of biometric data by immigration officials on a large scale for
the first time. In particular, it strengthened the powers of government
officials under the Migration Act to collect ‘personal identifiers’ (such
as signatures, photographs, height and weight measurements, fingerprints, iris
scans, audio or video recordings) from non-citizens in certain situations.
These situations included routine circumstances—such as when a person is
applying for an Australian visa or going through immigration clearance—and
circumstances when the person is suspected of being an unlawful non-citizen.
The amended Migration Act in Part 4A also contained various restrictions
on accessing and disclosing such personal identifiers except where expressly
permitted. Contravention of these restrictions constituted criminal offences
carrying significant penalties, including up to two years imprisonment.
The most significant expansion of the legislative scheme for
the collection of biometric data occurred with the recent amendments to the Migration
Act made by the Counter-Terrorism Legislation Amendment (Foreign Fighters)
Act 2014 (Foreign Fighters Act).
Among other things the Foreign Fighters Act authorised the collection of
biometric information at the border by an automated border clearance system
(called an ‘authorised system’), such as SmartGate and eGates.
Provisions in the Foreign Fighters Act also extended
to Australian citizens the data collection practices that previously had been
confined to non-citizens. The effect of the amendments being that the Migration
Act now allows the collection and retention of personal identifiers of both
citizens and non-citizens who enter or depart Australia or who travel on an
overseas vessel from one port to another within Australia. The Foreign
Fighters Act also set out how that biometric information could be accessed
and disclosed in order to assist in identifying and authenticating the identity
of a person who may be a national security risk.
Basis of policy commitment
The amendments in the Bill were not foreshadowed at the
time of the enactment of the Foreign Fighters Act in 2014 and nor was
the Bill forecast on the list of Legislation proposed
for introduction in the 2015 Autumn Sittings.
In a media release on 5 March 2015, announcing the introduction
of the Bill into Parliament, the Minister for Immigration and Border Protection
stated that the biometric measures are part of the Government’s response to
combat terrorism and keep Australia safe outlined by the Prime Minister on 23 February
The rationale for the amendments in the Bill being that:
Biometric checks at Australia’s air and seaports will enable
rapid identity checks with domestic and international security, law enforcement
and immigration agencies through portable, hand-held devices.
They will help to tackle identity fraud and disclose security
and criminal histories contributing significantly to protecting against the
spread of terrorism and human trafficking including children.
The checks will help prevent the entry of those who may
threaten the Australian community and the departure of others such as convicted
terrorist Khaled Sharrouf who left Australia in 2013 using his brother’s
Biometrics and the Privacy Act 1988
In addition to the Migration Act, the Department’s collection,
storage, sharing and use of biometric data is regulated by the Privacy Act
1988 (the Privacy Act) and the Australian Privacy Principles
contained within that Act.
Importantly, since reforms to the Privacy Act which
came into effect on 12 March 2014, biometric information is considered
'sensitive information' where it is used for the purpose of automated biometric
verification or biometric identification.
For example this might include a fingerprint collected using a mobile hand-held
scanner for the purpose of checking the individual’s identity against an
existing list of persons of interest.
Under the Privacy Act sensitive information
(including biometric information) is afforded a higher level of protection than
other types of personal information. For example, Australian Privacy Principle 3
requires that sensitive information must only be collected with the consent of
the individual unless one of the listed exceptions applies. Those exceptions
include where the collection is authorised or required by law.
As the Australian Privacy Commissioner explains:
... this means that if the Bill is passed, under the Privacy
Act an individual's consent will no longer be required for the collection
of any additional types of biometric information by the Minister or an
immigration officer, as the collection will be authorised by law. The Commissioner
argues that it is therefore especially important to ensure that the privacy
impacts of the expanded power to collect biometric information are considered,
including whether any additional safeguards are necessary.
Privacy impact assessment
Before it was passed, the Foreign Fighters Act was
the subject of an Inquiry by the Parliamentary Joint Committee on Intelligence
and Security (PJCIS).
Relevantly, the PJCIS recommended that the Government consult with the Privacy
Commissioner and conduct a Privacy Impact Assessment (PIA) prior to proposing
any future legislative amendments which would authorise the collection of
additional biometric data such as fingerprints and iris scans.
In making this recommendation, the PJCIS considered that a
PIA could help better inform the Parliament's, as well as the public's,
consideration of proposals involving the handling of biometric information.
The Government’s response to the PJCIS report agreed that a
PIA would be conducted prior to proposing any future legislative amendments
which would authorise the collection of additional biometric data.
In response to questions taken on notice, the Department has advised the Senate
inquiry that the PIA on the Bill is complete and would be sent to the Privacy
Commissioner’s Office before the next sitting of Parliament.
The Privacy Commissioner in his submission welcomed the
completion of the PIA but strongly recommended it be published by the
Senate Legal and
Constitutional Affairs Legislation Committee
The Bill has been referred to the Senate Legal and
Constitutional Affairs Legislation Committee for inquiry and report by 5 June
2015 (the Senate inquiry). Details of the inquiry are available here.
Senate Standing Committee for the
Scrutiny of Bills
The Scrutiny of Bills Committee has raised concerns about
the Bill, in particular about the broadd discretionary power of the Minister
and the Department to collect personal identifiers in proposed section 257A
(described below). The Committee’s Alert Digest No. 3 of 2015 states:
Of concern, from a scrutiny perspective, is the enormous
breadth of this discretionary power. [...] it is clear by the terms of the
provision that personal identifiers can be collected for any circumstance
‘where a link to the purposes of the Migration Act or the Migration Regulations
can be demonstrated’ [...] Given the voluminous content of the Migration Act and
regulations, this approach (of not requiring collection to be linked to
limited, specified legitimate purposes) represents a fundamental change in
approach to the collection of this particularly sensitive category of personal
The Scrutiny of Bills Committee also raises concerns about
the provisions that remove certain limits that currently apply to the
collection of personal identifiers from children and disabled persons who are
unable to give consent. It is the Committee’s view that the general concerns
identified with the breadth of the discretionary power to collect personal
identifiers in new section 257A are exacerbated in this context.
The Committee suggests that if the proposed broad
discretionary power is enacted, there is scope to include further legislative
guidance as to the exercise of that power in the particular circumstances of
minors and incapable persons:
The committee therefore seeks the Minister’s advice as to
whether consideration has been given to including more detail in the Bill about
what matters must be addressed and considered in exercising this power in the
context of minors and incapable persons. In this regard, the committee notes
that leaving such requirements to policy does not enable Parliament to assess
whether the limitations on rights have been adequately justified.
The Minister’s response justifies the Bill’s approach in
relation to minors and incapable persons pointing to a number of factors
increasing number of cases known, including some now reported in the media,
where minors are implicated in violent extremism
possibility of parents or guardians refusing consent
problems of children trafficking and
risks of radicalised minors.
The Minister’s response concludes:
The Bill will enable the Department to collect personal
identifiers to respond to risks as they arise in its operational environment
with less intrusion than is currently possible using non-biometric based
The Scrutiny of Bills Committee however remains of the
view that it would be preferable to include more detail in the Bill to guide
the exercise of this broad power in the context of minors and incapable
In particular, the committee is interested in the possibility
of including a requirement for reasonable steps to be taken to ensure that a
parent/guardian or independent person can be present with a minor or incapable
person and in reporting requirements.
Further comment from the Committee and the Minister can be
found in the Scrutiny of Bills Committee relevant Alert Digest and Report.
Labor did not oppose the Bill in the House of
Representatives. The Shadow Minister for Immigration and Border
Protection, Richard Marles, in his second reading speech, stated
that the Labor Party supports the measures in the Bill to enhance the ability
of Customs personnel to use biometric information as part of Australia’s robust
national security system. However Mr Marles also indicated that Labor has a
number of questions and concerns about the Bill in its current form and for
this reason has reserved its final position in terms of how it will deal with
the Bill in the Senate until the outcome of the Senate committee inquiry is
At the time of writing, the position of the Australian
Greens and independents is not known.
The submissions to the Senate inquiry indicate that
stakeholders and interest groups have three common concerns with the Bill
broad discretionary power given to the Minister and
Departmental officers to collect personal identifiers
- the removal of existing limits on the collection from children under
15 and from incapable persons and
- the removal of the privacy protections that currently apply to the
collection of personal identifiers in certain circumstances.
For example, the New South Wales Council for Civil
Liberties (NSWCCL) states that it is not absolutely opposed to the collection
of biometric data as proposed in the Bill and understands the justification for
the collection and use of biometric data in this context. However, NSWCCL is
concerned that the Bill in its current form is too open‑ended and does
not contain essential safeguards to limit the collection and retention of additional
The NSWCCL is of the view that the Bill should not proceed without significant
amendment informed by a rigorous privacy impact statement.
The Law Council of Australia raises questions about the biometric
collection scheme in relation to both the provisions proposed in the Bill and
provisions currently operating in the Migration Act. A particular
concern relates to the heavy reliance on regulations for significant matters
affecting peoples’ rights. The Law Council states:
As a matter of good legislative practice, significant matters
should be specified in primary legislation which generally undergoes extensive
consultation, not potentially subject to change by Ministerial decision and
regulation. The categories of biometric data, and the purposes for which it
should be collected, will raise significant questions of policy and have
substantial privacy implications. Given that citizens and non-citizens will be
required to provide one or more personal identifiers that are sensitive
information under the Privacy Act, [...]it is inappropriate for the types
of biometric data to be prescribed by regulations.
An indeterminate biometric data set and range of purposes for
which it may be collected fails to allow for a full Parliamentary consideration
of the necessity and proportionality of the scheme. The type of biometric data,
which can be stored and disclosed in certain circumstances, is a central and
fundamental concern for Parliament in deciding whether the Bill should be
enacted. This concern is heightened as the data is ‘sensitive information’ and
collected outside the traditional environment where consent is freely given.
Ministerial expansion of the purposes for collection and the
types of biometric data collected is also concerning as there are no security
protections specified in the Bill for data collected or protection from
expanded and unintended secondary uses or ‘function creep’.
The Refugee Council of Australia (RCOA) has general
reservations about the potential harmful effect of biometric data collection on
refugees and is therefore troubled by the proposed introduction of broader
powers to collect biometric information. In particular RCOA notes that the Bill
would allow a greater variety of biometric information to be collected and used
in a wider range of circumstances, but does not appear to introduce any
additional safeguards or procedures to regulate this new biometrics system.
Unless the broadened powers are matched with an appropriate regulatory
framework, RCOA fears that the Bill will create a higher risk of privacy
breaches, misuse of information and inaccurate decision-making.
RCOA also notes that the risk of privacy breaches is of
particular concern in light of a number of recent incidents in which sensitive
personal information has been unintentionally disclosed by the Department. It
points to one particular incident where the personal details of almost 10,000
asylum seekers who at that time were in closed or community detention in
Australia were accidently published online. More recently, the personal details
of world leaders attending the G20 summit in Brisbane were inadvertently
disclosed by an employee of the Department. RCOA is concerned that, ‘in the
absence of a robust regulatory framework, the Bill will increase the risk of
biometric information being similarly disclosed, with potentially serious consequences
for those affected’.
The Australian Privacy Commissioner, Timothy Pilgrim,
states that the expansion of the power to collect biometric information means
that the Bill has the potential to impact on the privacy interests of
individuals, particularly those of non-citizens.
The Privacy Commissioner argues that it is important to
ensure that such a broad expansion of the power to collect biometric
information from non-citizens is necessary and, further, that it is
proportionate to the objective of enabling the Department to ensure the
integrity of Australia's migration programme. To minimise the privacy impacts
of the Bill, any expansion of the existing power to collect biometric
information from non-citizens should be drafted narrowly and limited to only
what is necessary. Accordingly the Privacy Commissioner suggests that
consideration be given to amending the Bill to clearly state the purposes for
which this power is able to be exercised in the Act, rather than only referring
generally to the purposes of the Migration Act and the Migration
The Biometrics Institute’s focus is different. While
noting that biometric data has become increasingly accurate the Institute suggests
there is still a need for caution in using and relying on biometric data, particularly
in relation to children. It argues that recent research suggests that every
form of biometrics has challenges for young people that are different to those
... when you are dealing with young people, virtually every
form of biometrics has some form of difficulty. If it is fingerprints, a
child's hand, as it grows, can widen the gap between the ridges and the
valleys. That in itself can mainly create problems with registration at a later
date, as opposed to enrolment, which is when you first have your biometric
recorded. The difference between the original enrolment and the checking later
on may be quite considerable, in which case there could be some false
assumptions made by border authorities about a child over, let us say, a six-year
period. In custody cases or other sensitive issues, that could create real
The Biometrics Institute also warns of the dangers of
giving arbitrary powers to government officials where they ‘do not have to back
it up or where, for example they have a false confidence in the efficacy,
efficiency and accuracy of the biometric’.
Further comment from interest groups is provided under the
Key issues and provisions section below.
The Explanatory Memorandum states that the financial
impact of the Bill is low and that any costs will be met from within existing
resources of the Department.
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.
Parliamentary Joint Committee on
The Parliamentary Joint Committee on Human Rights (Human
Rights Committee) considers that the measures in the Bill that create a broad
discretionary power to collect personal identifiers engage and limit the right
to privacy, the right to equality and non-discrimination, the right to equality
before the law and the rights of the child.
With respect to privacy, the Human Rights Committee
acknowledges the information provided in the Statement of Compatibility that
the collection of personal identifiers would enable the department to conduct
identity, security, law enforcement and immigration checks that are of higher
integrity than checks possible using biographic details, such as name and date
of birth, alone.
However, in the Committee’s view, while the proposed power appears to be
rationally connected to the stated objective it may not be a proportionate
means to achieve this stated objective. The Committee notes that in order for a
limitation on human rights to be proportionate it must be only as rights
restrictive as strictly necessary. The Committee further explains:
The Bill would enable the collection of personal identifiers
wherever this is considered necessary for the purposes of the Migration Act or
regulations under that Act. There is no requirement that the collection of the
identifier be considered necessary in the circumstances or that an officer must
be reasonably satisfied that the collection would assist in the identification
of an individual. Accordingly, the Bill could permit the collection of personal
identifiers where it is not strictly necessary or where identity could be
verified in a less intrusive manner. Accordingly, the Committee considers that
the statement of compatibility has not demonstrated that the measures in the Bill
are the least rights restrictive way of achieving the legitimate objective and
so the measures may not be a proportionate limitation on the right to privacy.
The Human Rights Committee also raises concerns about other measures
in the Bill, some of which are considered under the Key issues and
provisions section below.
Personal identifiers—new broad collection
Personal identifiers are defined in subsection 5A(1) of
the Migration Act as:
or handprints of a person (including those taken using paper and ink or digital
live scanning technologies)
measurement of a person’s height and weight
photograph or other image of a person’s face and shoulders
audio or a video recording of a person
person’s signature and
other identifier prescribed by the regulations, other than an identifier the obtaining
of which would involve the carrying out of an intimate forensic procedure.
The collection of biometric personal identifiers is currently
authorised under eight provisions of the Migration Act depending on
various circumstances namely:
a non-citizen applies for a visa (sections 40 and 46)
Australia’s borders when a person (either a citizen or a non-citizen) is
arriving (section 166), travelling from port to port on an overseas vessel (section
170) or departing the country (section 175)
an officer reasonably suspects a person is a non-citizen and requires them to
present certain evidence of being a lawful non-citizen (section 188)
a non-citizen is detained as their visa is liable to cancellation under certain
provisions in the Migration Act (section 192)
a non-citizen is detained in immigration detention (section 261AA).
The Bill consolidates the first seven of these eight
circumstances into one new broad collection power. The regime for the eighth circumstance
(immigration detainees) is not affected by the Bill.
Item 34 in Schedule 1 is the central amendment
proposed in the Bill. It inserts new section 257A providing a single new
power to collect personal identifiers. Proposed subsection 257A(1) provides
that the Minister or an officer of the Department may, in writing or orally,
require a person to provide one or more personal identifiers listed in subsection
5A(1) for any purposes of the Migration Act or the Migration Regulations
1994. Proposed subsection 257A(2) clarifies that those purposes include
(but are not limited to) the purposes listed in subsection 5A(3). Those
purposes range from the very specific—to detect forum shopping by applicants
for visas, to the more general. For example:
assist in the identification of any person required under the Migration Act
to provide a personal identifier
improve the procedures for determining visa applications
enhance the Department’s ability to identify non-citizens who have a criminal
assist in identifying persons (both citizens and non-citizens) who may be a
security concern to Australia or a foreign country.
Proposed subsection 257A(3) places a limit on this
broad power of collection with respect to citizens so that a person
known or reasonably believed to be an Australian citizen may only be required
to provide personal identifiers under certain circumstances namely at the time
they are entering Australia (section 166), when travelling on an overseas
vessel from port to port (section 170) or when they are departing Australia
(section 175). This reflects the existing provisions that permit collection of
personal identifiers from citizens.
New subsection 257A(4) provides the ability to
prescribe circumstances in which personal identifiers must be required from a
The Explanatory Memorandum notes that this subsection replaces similar powers
to prescribe circumstances.
However this is a broader provision. As Australian Lawyers for Human Rights
(ALHR) notes, while the new subsection replaces similar powers to prescribe
circumstances in existing subsection 188(4) and subsection 192(2A), those
provisions are limited to situations where a lawful non-citizen is required to
give evidence and the detention of visa-holders where their visa is likely to
The Explanatory Memorandum does however provide further guidance, noting that the
limitation in subsection 257A(3) on when personal identifiers can be required
from citizens will continue to apply. That is, the circumstances prescribed
under new subsection 257A(4) for citizens cannot be circumstances where
personal identifiers cannot be required from citizens under subsection 257A(3).
Proposed subsection 257A(7) confirms that personal
identifiers can be required from a person more than once under the new collection
power. The Department’s submission and the Explanatory Memorandum provide
examples of circumstances where this may occur.
The Explanatory Memorandum justifies this new broad power
stating that due to the Department’s incremental approach to its biometrics
programme, significant numbers of non-citizens have not been subject to the
higher integrity identity, security, criminal and immigration history checks
that are possible using personal identifiers, either because of the timing of
their entry into Australia, or because of their method of arrival. These
amendments will enable this vulnerability to be addressed on a case-by-case
Under the new broad power, the department will not commence
collecting personal identifiers from all non-citizens who have not previously
provided them. The Bill is not introducing a universal collection policy. Rather,
the department will selectively collect personal identifiers from particular
individuals who have not previously provided their personal identifiers, but
who have been identified as of concern after their arrival in Australia, or due
to their behaviour while living in the Australian community.
As noted above, the broad collection power in proposed
section 257A is of concern to two Parliamentary Committees and a number of
submitters to the Senate inquiry. See above for a selection of comment.
The Migration Act currently provides that personal
identifiers must be provided to an authorised officer by way of an ‘identification
This identification test is subject to certain general rules (sections 258B to
258G) including that the test:
be carried out in circumstances affording reasonable privacy to the person
not be carried out in the presence or view of a person whose presence is not
necessary for the purposes of the identification test or required or permitted
by another provision of this Act
not involve the removal of more clothing than is necessary for carrying out the
not involve more visual inspection than is necessary for carrying out the test.
The Bill largely preserves these rules. Proposed
paragraph 257A(5)(a) provides that if a person is required to
provide one or more personal identifiers under subsection 257A(1), those
personal identifiers must be provided by way of one or more identification
tests carried out by an authorised officer or an authorised system.
Such tests would need to comply with the rules in sections 258B to 258G
New paragraph 257A(5)(b) is significant, providing
a new power for the Minister or an officer to require that personal identifiers
be provided in ‘another way’— that is in a way that is different from the
general rules as set out in the Act or different from the usual authorised
systems. According to the Government’s Statement of Compatibility with Human
Rights this will provide ‘the Minister or an officer with flexibility about
how a person is to provide personal identifiers, allowing the system of
safeguards and legislative instruments which currently govern the collection to
be bypassed where an officer or the Minister authorises a different method of
The Explanatory Memorandum justifies this new power
stating that removing the requirements of the ‘identification test’ safeguards
will allow for quick live scans of a person’s fingers using a mobile, hand-held
device. It is intended that this new power will be applied to allow such finger
scans, but this restriction will apply in policy only. It has been decided that
as no facial image will be collected, and no clothing will be required to be
removed, these new finger scans remove the need to maintain the safeguards
which have previously applied to the collection of personal identifiers, such
as not collecting biometrics in the presence or view of a person whose presence
is not necessary:
As only one to four fingers will be scanned using the mobile,
hand-held device, the check will take only seconds to complete. This compares
to the current identification test procedures, which are time-consuming and
resource intensive. The procedures routinely take between 30-60 minutes per
person to complete.
Data will not be retained after the finger scan check has
Such finger scans will be used to conduct checks against
existing data holdings to verify the identity of individuals, and to detect
persons of security, law enforcement or immigration concern. The scans will be
conducted at Australia’s border, as travellers (both citizens and non-citizens)
are entering and departing Australia. The scans will also be conducted during
key transactions with non-citizens who interact with the department after their
initial visa grant to travel to Australia. 
The Human Rights Committee and a number of submitters
expressed concern with this new power of collection in paragraph 257A(5)(b),
noting that if personal information is collected in this way, particular
safeguards provided for under the Migration Act, such as that the
identification test ’must be carried out in circumstances affording reasonable
privacy to the person’ would not apply.
The Human Rights Committee states that while the Statement
of Compatibility argues that the power would only be used in limited
circumstances, the Bill itself is not restricted in the way suggested. The Committee
considers that the Statement of Compatibility has not demonstrated that this
broad power imposes a necessary or proportionate limitation on the right to
privacy. The Committee considers that:
... this power has the potential to be used to bypass a number
of safeguards in the Migration Act and the Migration Regulations which
seek to ensure that the collection of personal identifiers is done in a manner
that is least intrusive on an individual's privacy. No rationale is provided
for removing such safeguards beyond an indication of the government's current
intended use of this provision.
collection—children and incapable persons
Currently Division 13AB in Part 2 of the Migration Act
sets limits on the collection of personal identifiers from minors and incapable
persons—a minor being a person less than 15 years old and an incapable person being a person who is ‘incapable of
understanding the general nature and effect of, and purposes of, a requirement
to provide a personal identifier’.
Existing subsection 261AL(1) provides that a minor, (both citizen
and non-citizen) can only be required to provide a personal identifier
measurement of the person’s height and weight or
person’s photograph or other image of the person’s face and shoulders.
Subsection 261AM(1) provides an equivalent limitation on
the types of personal identifiers that can be collected from incapable persons.
Items 48 and 51 amend these provisions
respectively with the effect of removing the limitation on the types of
personal identifiers able to be collected from minors or incapable persons
under new section 257A. Note however that with respect to identification
of immigration detainees (dealt with in Division 13AA of Part 2 of the Migration
Act) the limitation on the types of personal identifiers that can be
collected from minors or incapable persons remains. The Explanatory Memorandum
states that these amendments reflect the intention behind new section 257A
that the power to collect personal identifiers is to be applied equally to all
persons. Therefore there is no exemption for minors or incapable persons in
relation to the types of personal identifiers that can be collected.
Existing subsection 261AL(2) deals with consent when
taking personal identifiers from non-citizen minors under sections 40, 46 and
It provides that in these circumstances a non-citizen who is a minor must not
be required to provide a personal identifier by way of an identification test unless
a parent, guardian of the minor or independent person consents to the minor providing
the personal identifier.
Item 49 repeals this subsection with the effect of removing the requirement
for consent of the parent, guardian or independent person. Note that there is
already no requirement for consent when taking identifiers from minors (both
citizens and non‑citizens) under section 166, 170 or 175.
Existing subsection 261AL(5) provides another protection
for minors (both citizens and non-citizens). It provides that if a minor
provides a personal identifier, by way of an identification test, the test must
be carried out in the presence of a parent or guardian of the minor or an
Item 50 amends subsection 261AL(5), the effect
being that in relation to the new collection power of personal identifiers
under proposed section 257A, the identification test of a minor would
not be a required to be carried out in the presence of a parent, guardian
or independent person—unless the minor is in immigration detention.
Items 52 and 53 make equivalent amendments
in relation to incapable persons, with the effect of removing the existing
requirements to obtain consent or require the presence of a parent, guardian or
independent person during the collection of personal identifiers.
The Explanatory Memorandum states the rationale for the
collection of biometric data from children amendments as being:
child protection measure aimed at preventing child trafficking and/or
smuggling, noting cases where minors have been brought into Australia, both
with and without parental consent, as part of a family unit of which they are
not a member
response to recent terrorist-related incidents that have focused attention on
the involvement of minors in terrorist activity in the Middle East and Africa and
consistency with the age limit in other Five Country Conference Partners.
The Department explains how the issue of consent would
work in practice, noting that consent and the presence of a parent/guardian
would still be the normal practice:
Where a minor or incapable person is required under the new
broad power to provide personal identifiers, there will be no legislative
requirement for the consent of a parent, guardian or independent person. Under
policy, officers of the department will seek the consent and the presence of a
parent, guardian or independent person when requiring a minor or incapable person
to provide personal identifiers. If consent is not given or if the parent,
guardian or independent person frustrates collection by walking out of the room
consequences would flow from that conduct. For example, the minor may be
refused a visa application or their visa application may be invalid.
As has already been noted, two parliamentary committees plus
a number of submitters have questioned the removal of the existing restrictions
regarding the collection of personal identifiers from minors and incapable
In ALHR’s view the proposed removal of these restrictions
is not consistent with the rights of unaccompanied children to be able to
provide informed consent in relation to their own personal information and is inconsistent
with Australia’s obligations under the Convention on the Rights of the Child.
The Law Council recommends that if the amendments go
ahead, specific guidelines should be implemented and published in relation to
obtaining biometric information from children, to ensure that information is
obtained in a respectful way, including ensuring that younger children are not
separated from their parent, guardian or independent person unnecessarily. The
Law Council further recommends:
Explanatory Memorandum should be amended to clarify the number of children and
the threat younger children may pose which justifies the amendments
independent guardian should be appointed to an unaccompanied minor if biometric
information is required to be taken from the minor and
should be given to amending the Bill to include safeguards to protect minors as
set out in the Immigration Act 2014 (UK) (insofar as they are consistent
with Australia’s commitments under the Convention of the Rights of the Child).
Consequential amendments and
removal of redundant provisions
Consequential to the new general collection power in proposed
section 257A, Schedule 1 of the Bill contains numerous amendments to
existing provisions which deal with circumstances where personal identifiers
are currently collected.
These amendments are described in detail in the Explanatory
Memorandum. The following example sets out how some of these amendments
Existing section 166 deals with persons (both citizens and
non-citizens) entering Australia and the requirements of providing evidence of
identity. Currently paragraph 166(1)(c) provides the power for a
clearance officer to require a person entering Australia to provide one or more
personal identifiers listed in subsection 166(5). The personal identifiers
specified in subsection 165(5) are: a photograph, signature, any other personal
identifier contained in the person’s passport or travel document, and any other
personal identifier of a type prescribed for this purpose. Subsection 166(7) provides
that such an identifier must be provided by way of one or more identification
tests carried out by an authorised officer or authorised system. Subsection
166(8) provides that subsection 166(7) does not apply in prescribed circumstances.
Items 13 to 15 amend paragraphs 166(1)(a) and (c) and item 16 repeals
subsections 166(5), (7) and (8).
The effect of the repeal of subsection 166(5) is that
there will be no restrictions on the types of personal identifiers (as defined)
which can be required from persons entering Australia. Subsections 166(7) and
(8) are also repealed being redundant, reflecting the broad new collection
power in proposed section 257A, and that under new subsection 257A(5)
personal identifiers must be provided by way of one or more identification
tests carried out by an authorised officer or an authorising system; or by
another way specified by the Minister or officer. The amendments to paragraphs
166(1)(a) and (c) insert a reference to section 257A
and remove references to subsection 166(5).
They are purely consequential.
Items 9 to 12 and 17 to 32 make similar consequential
amendments to other provisions which currently authorise the collection of
Biometric information is sensitive information and
normally afforded a higher level of protection than other types of personal
information. It is understandable therefore that the Bill, which seeks to
broaden the discretionary powers of collection of biometric data under the Migration
Act and remove some of the protections currently in place, has raised
concerns amongst Parliamentary Committees and interest groups.
The Government argues the ten year old system of biometric
collection is in need of modernising and justifies the more robust system of
collection as a necessary response to national security threats including
terrorism, human trafficking and identity fraud.
Interest groups are concerned that in seeking to extend
this system of biometric data collection, the Bill has introduced an extremely
broad discretionary power and at the same time removed some of the existing
safeguards including privacy protections and the restrictions currently
provided with regard to children and vulnerable persons.
Parliament therefore has a complex task of responding to
the challenges presented by the Bill and determining whether the introduction
of broad discretionary powers is a proportionate response or if more targeted
amendments with appropriate safeguards could be used. As various submitters
have suggested, the release of the Privacy Impact Assessment to the public
would assist in this process.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
. Migration Act 1958, accessed 27 May 2015.
of Immigration and Border Protection, Submission to the Senate Legal and
Constitutional Affairs Legislation Committee, Inquiry
into the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015, April 2015, p. 3, accessed 27 May
Bunyan, Migration Legislation Amendment (Identification and Authentication)
Bill 2003, Bills digest, 14, 2003–04, Parliamentary Library,
Canberra, 2003, p. 1, accessed 1 June 2015.
. Migration Legislation
Amendment (Identification and Authentication) Act 2004, accessed 1 June
Legislation Amendment (Foreign Fighters) Act 2014, accessed 3 June
. Automated border clearance systems (SmartGate and
eGates) are authorised systems to perform the immigration clearance function
for arriving passengers, and border processing for departing passengers. The
authorised system confirms the identity of a traveller by biometrically
comparing the photograph contained in the passport to a live image of the
traveller’s face and conducts visa and alert checks. Prior to the Foreign
Fighters Act, the Migration Act only allowed an authorised officer
(not an authorised system) to obtain personal identifiers from non-citizens by
way of an identification test under sections 160, 170 and 175 of the
. For further background see: C Barker, M Klapdor, M Coombs
and M Biddington, Counter-Terrorism
Legislation Amendment (Foreign Fighters) Bill 2014,
Bills digest, 34, 2014–15, Parliamentary Library, Canberra, 2014, accessed 1
of Prime Minister and Cabinet (DPMC), Legislation proposed for introduction in the 2015 Autumn Sittings, DPMC, Canberra, 2014, accessed 27 May 2015.
Abbott (Prime Minister), A message from the Prime Minister - our plan to keep Australia safe, media release, 4 October 2014, accessed 4 June 2015.
. P Dutton (Minister for Immigration and Border
Protection), Greater protection at Australia's borders,
media release, 5 March 2015, accessed 27 May 2015.
. Privacy Act 1988,
accessed 27 May 2015.
6, Privacy Act.
Privacy Commissioner, Submission to the Senate Legal and Constitutional Affairs
Legislation Committee, Inquiry
into the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015, April 2015, p. 3, accessed 27 May 2015.
Joint Committee on Intelligence and Security, Advisory
report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill
2014, Canberra, October 2014, accessed
27 May 2015.
. Ibid., recommendation 36, pp. xix and 185.
Brandis (Attorney-General), Government response to Committee report on the Counter-Terrorism
Legislation Amendment (Foreign Fighters) Bill 2014, media release, 22 October 2014, accessed
27 May 2015.
Standing Committee on Legal and Constitutional Affairs, ‘Answers
to Questions on Notice taken at a public hearing of a Parliamentary Inquiry:
Strengthening Biometrics Bill’, Immigration and Border Protection
Portfolio, Questions 2015/001–012, 16 April 2015, received 30 April 2015.
. Australian Privacy Commissioner, op. cit., p. 7.
Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Migration Amendment (Strengthening Biometrics
Integrity) Bill 2015, The Senate, Canberra, 2015, accessed 27
. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 3 of 2015, The
Senate, 18 March 2015, pp. 31–32, accessed 27 May 2015.
. Senate Standing Committee for the Scrutiny of Bills, Fifth
report of 2015, The Senate, 13 May 2015, pp. 398–399,
accessed 1 June 2015.
. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 3 of 2015, op. cit.; Senate Standing Committee for
the Scrutiny of Bills, Fifth
report of 2015, op. cit.
reading speech: Migration Amendment (Strengthening Biometrics
Integrity) Bill 2015’, House of Representatives, Debates, 13
May 2015, p. 33, accessed 20 May 2015.
South Wales Council for Civil Liberties, Submission to the Senate Legal and
Constitutional Affairs Legislation Committee, Inquiry
into the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015, 9 April 2015, p. 3, accessed 27 May
Council of Australia, Submission to the Senate Legal and Constitutional Affairs
Legislation Committee, Inquiry
into the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015, 10 April 2015, p. 6, accessed 27 May 2015.
Council of Australia, Submission to the Senate Legal and Constitutional Affairs
Legislation Committee, Inquiry
into the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015, April 2015, p. 2, accessed 27 May
Privacy Commissioner, op. cit., p. 1.
Aulich (Chair, Privacy Experts Group, Biometrics Institute), Evidence to Senate
Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015, Proof
committee Hansard, 16 April 2015, p. 10, accessed 27
. Explanatory Memorandum, Migration Amendment (Strengthening Biometrics Integrity) Bill 2015, p. 2, accessed 12 March 2015.
Statement of Compatibility with Human Rights can be found at page 33–48 of the
Explanatory Memorandum to the Bill.
Joint Committee on Human Rights, Twenty-second
report of the 44th Parliament, The Senate, Canberra, May 2015, pp. 58
and 63, accessed 21 May 2015.
the identification of immigration detainees and the collection of personal
identifiers is subject to a separate regime under Division 13AA of Part 2 of
the Migration Act. The Bill does not affect the operation of that
. Note: a further amendment in the Bill (item 3,
Schedule 1) provides an additional purpose—namely to assist in determining
whether a person is an unlawful or lawful non-citizen.
Memorandum, op. cit., p. 20.
means that the detail will be in regulations made under the Migration Act.
current subsection 188(4) and subsection 192(2A); each subsection will be
repealed under item 28 and item 31. Explanatory Memorandum, op.
cit., p. 20.
Lawyers for Human Rights, Submission to the Senate Legal and Constitutional
Affairs Legislation Committee, Inquiry
into the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015, 9 April 2015, p. 2, accessed 27 May 2015.
Memorandum, op. cit., p. 20.
p. 22; Department of Immigration and Border Protection, op. cit., pp. 8–9.
Memorandum, op. cit., p. 35.
as ‘a test carried out in order to obtain a personal identifier’ (section 5).
258E of the Migration Act.
authorised system, when used in a provision of this Act, means an
automated system authorised in writing by the Minister or the Secretary for the
purposes of that provision—subsection 5(1) of the Migration Act.
of Compatibility with Human Rights, Explanatory Memorandum, op. cit., p. 37.
Joint Committee on Human Rights, op. cit., p. 59.
the Migration Act.
Memorandum, op. cit., p. 27 and p. 29.
. These circumstances are: when a non-citizen applies
for a visa (sections 40 and 46); where an officer reasonably suspects a person
is a non‑citizen and requires them to present certain evidence of being a
lawful non-citizen (section 188).
independent person is only used if no parent or guardian of the minor is
readily available, or the Minister is the minor’s guardian.
. Those circumstances are: at Australia’s borders when arriving
(section 166), travelling from port to port on an overseas vessel (section 170)
or departing the country (section175).
these amendments do not apply in relation to incapable persons in detention.
Memorandum, op. cit., pp. 44–45.
The Five Country Conference (FCC) is a forum consisting of
Australia, Canada, New Zealand, the United Kingdom and the United States of
America. It is a group which advances specific immigration-related initiatives.
For further information see the conference website, accessed 1 June 2015. The Department’s submission states that
fingerprints can be collected from the age of six in the United Kingdom and
European Union. New Zealand and the United States do not legislate an age limit
for the collection of biometric information for immigration purposes; in both
cases it is determined as a matter of policy: Department of Immigration
and Border Protection, op. cit., p. 7. The Law Council questions this
justification noting that there is a key difference in terms of rights
protection between Australia and the other partners. Australia unlike the UK,
Canada and New Zealand, does not have a human rights Act, nor does it have the
same degree of constitutional protection for human rights as the United States:
Law Council of Australia, op. cit., p. 19.
of Immigration and Border Protection, op. cit., p. 8.
Lawyers for Human Rights, op. cit., pp. 4–5. The Convention
on the Rights of the Child, opened for signature 20 November 1989, ATS
 No. 4 (entered into force for Australia 16 January 1991), accessed 1
Council of Australia, op. cit., pp. 19–20. The Law Council explains that the
protections under the UK Act ‘include a requirement that the biometric
information is to be provided in the presence of the child’s parent, guardian
or a person who is temporarily taking responsibility of the child’.
described above those circumstances are: when a non-citizen applies for a visa
(sections 40 and 46); at Australia’s borders when a person (either a citizen or
a non-citizen is arriving (section 166), travelling from port to port on an
overseas vessel (section 170) or departing the country (section175); where an
officer reasonably suspects a person is a non-citizen and requires them to
present certain evidence of being a lawful non-citizen (section 188) where a
non-citizen is detained as their visa is liable to cancellation under certain
provisions in the Migration Act (section 192).
13 and 15.
list of these provisions is set out on p. 9 of the Bills Digest.
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