Submission to the

Senate Legal and Constitutional Committee

regarding the

Inquiry into the provisions of the Migration Legislation Amendment (Identification and Authentication) Bill 2003

Submitted by: 

Public Interest Advocacy Centre

1 September 2003

Introduction
The Public Interest Advocacy Centre (“PIAC”) appreciates this opportunity to comment on the proposed Migration Legislation Amendment (Identification and Authentication) Bill 2003 (“the Bill”).
PIAC is an independent and non-profit legal and policy centre located in Sydney. Its Charter is: 
“To undertake strategic legal and policy interventions in public interest matters in order to foster a fair, just and democratic society and empower citizens, consumers and communities.”
Established in July 1982 as an initiative of the Law Foundation of New South Wales, PIAC was the first, and remains the only, broadly based public interest legal centre in Australia. Although located in New South Wales, the matters that PIAC undertakes are often of national interest or importance, or have consequences beyond state boundaries. In this way, PIAC’s work goes beyond the interests and rights of individuals.
The centre’s clients and constituencies are primarily those with the least access to economic, social and legal resources and opportunities. At present for example, PIAC is undertaking a number of matters on behalf of asylum seekers in Australia. PIAC provides its services free or at minimal cost.
While PIAC welcomes the referral of this legislation to the Committee, we are concerned about the short period for public consultation, which may prevent members of the public and community organisations with limited resources from preparing a full submission. PIAC believes that this Bill warrants considerable scrutiny, and recommends that further time should be allowed to enable thorough review of the powers which the Bill grants the Minister, and the effects on individual rights and liberties and children if the Bill is implemented in its current form.  
In the short time PIAC has had available to undertake a preliminary review the Bill, it has identified a number of concerns relating to the Bill. PIAC’s primary concern is that there has been a failure to articulate a compelling need for this legislation. Other key concerns relating to the provisions of the Bill are as follows: 
•	potential breaches of Australia’s international human rights obligations, in particular the right to privacy; 
•	the reliance upon delegated legislation to delineate significant powers;
•	the absence of safeguard provisions relating to destruction of personal identifiers;
•	the absence of provisions relating to supervision of information; and 
•	the process as a whole and the effects that it will have on asylum seekers and others seeking to enter Australia.
Whilst PIAC recognises that there is a need to accurately identify those who seek to enter and remain in Australia, this must be balanced with the need for protection of individual rights and the utility of the proposed process. We deal with each of the above concerns in this submission.
Failure to articulate a compelling need for this legislation
As we will discuss, this Bill will abrogate fundamental individual rights. As such, we submit that there must be a compelling need for this legislation before it is passed. This has not been demonstrated. Further, the measures set out in this Bill will not be effective in preventing the evil complained of. 
The Minister states that the purpose of the Bill is to strengthen and clarify existing statutory powers to identify non-citizens.  Other purposes of the Bill are: 
•	to combat document and identity fraud in immigration matters;
•	to accurately identify non-citizens who have a criminal record or who are of national security concern;
•	to detect forum shopping by applicants for visas; and
•	to ascertain whether applicants for protection visas or refugee status had sufficient opportunity to avail themselves of protection before arriving in Australia.
While PIAC acknowledges that it is indeed important to have measures in place to accurately identify people who come and seek to remain in Australia, the main purposes of the Bill appear to be based on two untested assumptions: 
i.	that identity fraud is being committed by non-citizens; and 
ii.	that the information proposed to be collected could be compared with data in other countries.
Precise measurement of identity fraud committed by asylum seekers is difficult. In Australia there has not been a public study of identity fraud. Further, Minister Ruddock did not, in his second reading speech, present any clear basis for his assertions in relation to the scope of this problem. The government has not, in our opinion, presented sufficient evidence of the nature and extent of the problem to warrant passing such invasive legislation. In order to interfere with the fundamental human rights of asylum seekers and others entering Australia, a clear and substantiated justification must be articulated. It has not. 
Even if we accept, which we do not, that there is a pressing need for this legislation, we doubt whether it will have the impact claimed. To assess whether the amendments in the Bill will achieve their purpose it is necessary to know whether the data collected under the Bill is compatible with that collected in other countries. It is also essential to know whether arrangements have been made to facilitate the sharing of information between countries before the Bill is passed. 
There is evidence that other western countries such as the United States, Canada, United Kingdom and countries within the European Union collect personal identifiers, particularly fingerprints, signatures and photographs. However that is not where the majority of asylum seekers originate from. Prior to the Bill being passed it would be useful to ascertain whether countries such as Iran, Afghanistan, Syria and Jordan collect personal identifiers that could be compared with information proposed to be collected in Australia. In PIAC’s experience, these are the principal countries in which it is alleged that asylum seekers could have claimed effective protection. 
As the process has been articulated, we assume that Australia will send asylum seeker’s details to other countries. Countries which presumably they have fled from, potentially placing them in further danger if they return.
Australia’s international human rights obligations – breach of the right to privacy
As Australia has ratified the International Covenant on Civil and Political Rights (“ICCPR”), it is obliged to ensure that individuals are not subjected to “…arbitrary or unlawful interference with… privacy”.  PIAC is extremely concerned that the Bill as currently drafted, breaches this obligation. 
General Comment 16, adopted by the Human Rights Committee, elaborates on the right to privacy. In relation to the expression “arbitrary” the Committee states that this is “…intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the [ICCPR] and should be, in any event reasonable in the particular circumstances.”
Whilst it is clear that not all interferences with privacy will breach the ICCPR, they will do so where the curtailment of the right is unreasonable or not objectively justifiable on a case-by-case basis.  As we have indicated above, there is a lack of clear evidence as to the extent of identity fraud on the part of asylum seekers in Australia, and it is unclear as to whether the information collected will be able to be compared with records overseas. In these circumstances, it is PIAC’s view that the interference provided for by the Bill is not justifiable or reasonable in the circumstances, and therefore does not comply with the right to privacy enshrined in the ICCPR. 
By way of further example, the Bill provides that a purpose of obtaining personal identifiers can be to assist in the identification of non-citizens in the future.  This allows information to be collected in cases where there is rarely if ever, immigration fraud, “just-in–case”. In PIAC’s view this is not a proportionate or justifiable response when there is no evidence as to the scale of identity fraud by non-citizens. 
We also note that the General Comment provides that even with regard to interferences that conform with the ICCPR, relevant legislation must specify in detail the precise circumstances in which such interferences must be permitted. The Bill currently does not provide for this; an issue which we now turn to address. 
Reliance upon delegated legislation to delineate significant powers
As currently drafted, there are significant gaps in the Bill. The Bill contemplates for example, that the Minister will prescribe at a later date the circumstances in which personal identifiers are required and the exceptions to these circumstances.  New personal identifiers may be prescribed in regulations, and regulations may also prescribe the manner for carrying out identification tests. The application of the regime is potentially extremely broad. 
Whilst PIAC gains some comfort from the knowledge that any delegated legislation will be scrutinised by the Senate Regulations and Ordinances Committee, PIAC considers that it is inappropriate that legislation which affects the fundamental human rights of individuals should be enacted with such lack of clarity. As we mentioned above, the Human Rights Committee’s General Comment provides that legislation interfering with the right to privacy must specify in detail the precise circumstances in which such interferences may be permitted. It is also well established that, in interpreting legislation, courts are reluctant to impute to the legislature an intention to interfere with fundamental rights unless that intention is manifested by clear and unmistakable language. 
We also refer the Committee to the Administrative Review Council’s report on Rulemaking by Commonwealth Agencies, in which the ARC recommends that measures which have a significant impact on individual rights and liberties should be enacted in primary legislation. 
Absence of safeguard provisions relating to destruction of personal identifiers
In PIAC’s view the provisions in the Bill relating to the destruction of personal identifiers are hollow, and provide little protection. 
Generally, destruction is required as soon as practicable after the information is no longer required to be kept under the Archives Act (Cth) 1983. Measurements of height or weight, photographs of face and shoulders and signatures or attached identifying information are however exempt from this requirement. In relation to information that is not exempt, the Bill requires the destruction of the identifying information, but not the sample itself. Further, identifying information can be indefinitely retained if the person to whom it relates has, for example, ever been in immigration detention, had a visa cancelled or refused, or overstayed a temporary visa. 
PIAC considers that these provisions are unsatisfactory, and recommends that a time limit be set for the destruction of all information (including both the sample and identifying information). In this regard PIAC refers the Committee to the Eurodac system which has been recently introduced in the European Union (EU). This system only collects anonymous fingerprints, and all samples are destroyed after 10 years, or upon a grant of citizenship. PIAC considers this might be an appropriate precedent for Australia to follow.
Absence of provisions relating to supervision of information
PIAC is concerned that the Bill, as currently drafted, does not provide for supervision by an independent authority over data collection, storage, use and destruction.  
By way of comparison, PIAC again refers the Committee to the Eurodac as a precedent. To ensure there is no misuse of the system, a national supervisory authority in each participating state monitors independently the lawfulness of the processing of data. As a further safeguard, a joint (EU and participating states) supervisory authority ensures that the rights of data subjects are not violated. This will shortly be replaced by an independent supervisory authority, the European Data Protection Supervisor, a position being established by the EU. As a final safeguard the European Commission will submit to the European Parliament and to the council of the EU, an annual report on the management and working of the Eurodac.
PIAC recommends that this Bill be amended to include supervisory powers of a similar nature given to an independent authority, such as the Ombudsman. PIAC considers this is a vital requirement in order to enhance protection against arbitrary or unlawful interferences with personal information. 
Process and its effects on asylum seekers 
Although there are several safeguards in the Bill, such as the requirement that identification tests be carried out in circumstances affording reasonable privacy, and must not be carried out in a cruel, inhuman or degrading manner, PIAC is concerned that the procedures established by this Bill will have significantly detrimental effects on asylum seekers and other persons seeking to enter into Australia. 
In a practical sense alone, the consequences of failure to comply with an identification requirement are unreasonably harsh. Failure to comply may, for instance, make a visa application invalid, or be grounds for refusal of a visa. Given that many asylum seekers have recently escaped persecution by regimes which constantly use identification processes, they will clearly be distrustful of authority and government motives. Particularly if it is explained to them that the information may be given to overseas governments. 
PIAC is of the view that this process is invasive and demeaning and will have the effect of further de-humanising and alienating asylum seekers arriving in Australia, regardless of whether their claims for refugee status are legitimate. Many asylum seekers have fled from repressive and destructive regimes. The cumulative effects of mandatory detention, patrol by guards for example and now a regime of requiring personal identifiers is punishment, particularly in light of the fact that the Bill allows the use of reasonable force in carrying out identification procedures. 
If this Bill is passed, it will have the psychological effect of treating asylum seekers like criminals. In this instance they will be treated more harshly than criminals. Under the Crimes Act 1914 (Cth) (“Crimes Act”), for example, identification material is confined to prints of a person’s hands, fingers, feet or toes, recordings of the person’s voice, samples of the person’s handwriting, photographs or video recordings.  The types of identifiers provided for in the Bill go further than this to include height and weight measurements, iris scans and identifiers which are yet to be prescribed. Further, the Crimes Act provides that identification material must be destroyed “…as soon as practicable” if a period of 12 months has elapsed since the information was collected and proceedings have not been instituted or have been discontinued, or if a person is acquitted or no conviction is recorded. In contrast, as has been discussed above, this Bill provides that personal identifiers can be retained indefinitely in certain circumstances.
Conclusion
PIAC has serious concerns about this Bill. In PIAC’s opinion, the government has failed to articulate a compelling need for legislation of this kind. The Bill does not appropriately balance the need to accurately identify persons entering Australia with the need to protect individual rights. PIAC also considers that there is a lack of verifiable evidence that this Bill will be effective in achieving its purpose of combating identity fraud.
The measures that are introduced in the Bill are in breach of Australia’s international obligation to protect the right to privacy. Further, there is inappropriate use of delegated legislation and an absence of provisions relating to destruction and supervision of information collected. PIAC is also concerned about the effects the measures will have on asylum seekers. 
Accordingly, PIAC is of the opinion that the Bill should not be passed in its current form.