Duncan Kerr (Denison, Australian Labor Party) Share this | Hansard source

The Migration Amendment (Border Integrity) Bill 2006 makes a number of positive amendments to the Migration Act which we as the Labor opposition support. In the main those amendments are non-controversial but they are important. One of the curiosities of this debate is that a number of the changes that the government said were urgent and ones of great moment have not come forward for over three years since the government introduced legislation that it now says was deficient in key areas. Thus far the only explanation we have heard in relation to that matter is that legislative drafting priorities were otherwise. It does seem an extraordinary situation that the government can come before this parliament claiming urgency in relation to the debate that is presently before us, point out that there are significant defects in its own legislation—which did have administrative difficulties and problems—and in some manner avoid the criticism of this House for having circumstances of that nature exposed. So, whilst the opposition does broadly support the legislation that is presently before it, it does so with some small sense of irony.

As a member of this House I also want to put on record a concern that I have personally about the way in which this particular matter has proceeded. When the underlying legislative changes were brought in enabling the collection of quite intrusive forms of information about those who would enter this country, we were given in this parliament the ‘cross my heart, spit and swear to die’ assurances that there would be no further extensions of these provisions. Now, three years later, we are told that the act was drafted in a way that was inconveniently narrow, that in fact it has created a great degree of difficulty for the administration of immigration and related areas of law enforcement and the terms in which this parliament passed the legislation were too narrow.

I do not mind that we address a deficiency once exposed, but I am particularly concerned about what one of my former colleagues, Senator Barney Cooney, used to call ‘legislative creep’. This is where government introduces a particular measure and gives to the parliament absolute binding, ‘cross your heart, spit and swear to die’ assurances that it will never re-extend it in any other area, that its reach will be narrowly prescribed. The House accepts the legislation on those assurances and then, as sure as shooting, it turns up a year or two later and discovers that the government proposes a much wider range of persons who can have access to that information. It would be far more honourable and honest if, in these debates, the government came forward with the real range of its objectives in the first place. I cannot believe that it was not within the minds of those who were proposing the legislation initially that it would need an extension of the kind that is now being proposed.

The situations in which this information is collected are when people are applying for an Australian visa, when they are going through immigration clearance, when a noncitizen is put into immigration detention or where a person is suspected of being an unlawful noncitizen. In those circumstances, personal identifiers are collected. ‘Personal identifiers’ is a euphemistic way of describing a whole range of information about what the person looks like, their biometric details and fingerprint details—all kinds of personal information. The 2004 amendments said that this was extraordinarily intrusive and, therefore, it would be prohibited from being accessed or disclosed, except where the act expressly permitted it. Indeed, we were told that any disclosure beyond that which was so narrowly prescribed would attract up to two years imprisonment. The bill before us widens the disclosure provisions significantly.

There are three new exemptions to the unlawful disclosure regime that was proposed three years ago. The first is where a person who accesses the information believes on reasonable grounds that the access or disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of that person or any other person. This is a perfectly sensible extension. It would apply, for example, where there has been a threat against an immigration official or an Australian embassy. The department might hold a photograph of the person or it might hold some other information—in fact, it would hold a significant amount of other information and it could disclose that.

The second provision is where the disclosure is reasonably necessary for the enforcement of a criminal law of the Commonwealth or of a state or territory. This amendment would fix the problem that the government says has emerged where the department cannot disclose signed incoming passenger cards to the AFP or to the Commonwealth DPP to assist, for example, with cracking down on drug smugglers. The provision is much wider than in relation to the smuggling of drugs. When this regime was put in place, there would have been some realisation that it was deliberately narrowed—only to immigration related matters—because of the concern that this collection under requirement of law was not to be used for general law enforcement purposes. Now we propose to permit it. I am told that this has been the subject of consultation with the Privacy Commissioner. I have no reason to dispute that; but, nonetheless, we have again taken a regime that was promised to the parliament to be restricted for the narrow purpose for which it was created and extended it across the whole range of Commonwealth law enforcement responsibilities.

The third new disclosure provision is where the disclosure is required by or under a law of the Commonwealth or of a state or territory. This can open up a wide range of permitted disclosures. The Commonwealth can continue to pass laws which authorise such disclosures. Interestingly, in relation to the provision about the disclosure required under the law of a state or territory, I understand that, in briefings to the shadow minister, the department said the phrase ‘required by or under a law of the Commonwealth or of a state or territory’ refers to such state or territory laws that validly bind the Commonwealth. This is why the word ‘required’ rather than ‘authorised’ is used. But, in a sense, that is a circular argument because only when the Commonwealth permits access to information of this kind can a state have the legislative capacity to demand it.

The definition, whilst providing that it relates to information required by or under a law of a state or territory, implicitly authorises states and territories to so require it. Having, by such means, implicitly authorised the states or territories, no doubt it will be used. So states and territories will also be able to access—by way of search warrants and various other means authorised under their legislation—information that this parliament was told originally would be used exclusively for immigration related matters. Here I am referring to the sorts of issues—the Alvarez type matters—where, colleagues were advised by the government, certainty of identity is known in order to prevent abuse of our borders by people who are within Australia illicitly or who are staying too long. This is with respect to the general implementation of the laws of not only the Commonwealth, in this instance, but also the territories and the states. I understand and accept this extension; however, as I have mentioned, I have some concerns about the manner in which it has been proceeded with. We have seen this sort of legislative creep in a whole range of areas.

Currently, this parliament has before it the prospect of legislation to introduce a national identity card. It is now being said that it would be limited to a whole range of narrow purposes and would not extend beyond those. But, having been a member of this House for some 20 years and having seen the manner in which those undertakings are routinely shredded, I do not have any faith in that statement whatsoever. When such measures are proposed, I think we have to look at how they will actually be implemented—not on the undertakings initially given, but on a reasonable prediction of the demands and expectations of the law enforcement community and those Commonwealth and state agencies that believe they have a legitimate interest in accessing that information. In this area we have already seen information that was promised to be restricted in the narrowest of terms now being made available in wide terms.

It is a lesson that those of us who have had membership in this House for a long period need to convey to newer members, to warn them that there is this experience, to warn them that assurances given in the course of one parliament do not necessarily adhere to the commitments of the government in the next parliament. Indeed, sometimes they do not adhere within the life of a single parliament. But, in this instance, they certainly did not last across the lives of two parliaments.

I understand why these measures are put in place, and I do not want to dwell exclusively on those particular measures. A number of other matters, particularly the e-visa scheme, have been put in place and there are convenient arrangements that apply to New Zealand which have immediate and strong support from the opposition. This is really a tidying up exercise. There are some odd provisions in the legislation. If you go to the regulations and look at the brief prepared for the parliament by the Parliamentary Library, you discover a very interesting regulation about special purpose visas which, essentially, are visas that you get automatically, without the need to apply. They extend to various classes of people who come in and out of the country, without the requirement of preclearance. But, if you look at the actual list, under regulation 2.40, ‘persons having a prescribed status for a special purpose visa’, you will see it lumps together a quite extraordinary range of people, including members of the royal family, who, in some way, are in the same grouping as members of the crew of ships being imported into Australia and airline positioning crew members and—

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