Barry Haase (Kalgoorlie, Liberal Party) Share this | Link to this | Hansard source

I continue in support of the Migration Amendment (Border Integrity) Bill 2006, specifically on the subject of the first amendment to this bill—that is, the declaration to remove the special purpose visa. As I said last night, special purpose visas allow for specified persons or members of specified classes to be taken to hold a temporary visa. When there is a question about the visa holder’s suitability, the current legislation says that Department of Immigration and Citizenship officers can usually cease that person’s special purpose visa and commence processes to locate the person. Presently, however, if the person is located on the day that their special purpose visa is ceased, the officer cannot detain the person until midnight of that day.

This has left DIAC officers with no choice other than to encourage the relevant crew person to go back to a vessel. This is undesirable from a border integrity viewpoint and hardly a logical system. Therefore, this amendment will provide that a declaration takes effect at a time specified in the declaration. The specified time will not be a time before the declaration is made. The legal effect will be that the special purpose visa will cease at the time specified in the declaration. If no time is specified, it will take effect at the end of the day on which it is signed.

As I have previously stated, the Australian Government Solicitor has advised that the common law principles of natural justice should be applied in relation to declarations made to cease a special purpose visa. How this is achieved—that is, the type of hearing and the response time—will of course depend on the circumstances of each case.

With regard to the second amendment of this bill, relating to the introduction of an automated border processing system, I had begun to speak about SmartGate. The SmartGate system allows passengers to process themselves electronically. The detail contained within the chip—that is, the electronic chip embedded in the passport—will reveal all the information required for entry into Australia. SmartGate uses facial recognition biometric technology to perform a ‘face to passport’ check to verify a person’s identity.

The number of international arrivals and departures at Australian international airports is forecast to increase by up to 23 per cent by 2009. Extensive trials of the SmartGate system have been carried out in Sydney and Melbourne airports. This proposed amendment will allow for SmartGate to be used for all Australian citizens and selected noncitizens with eligible e-passports. Eligible e-passports for Australian citizens contain an embedded microchip which stores a digitised photograph, name, gender, date of birth, nationality, passport number and the passport expiry date. Noncitizens must hold a passport which the minister or the secretary has determined as eligible. These eligible passports will contain embedded information stored on a microchip which will be accessed by the automated system. SmartGate will temporarily store this data while it is used to process the relevant passenger, and then destroy this information shortly thereafter. It should be noted that the system will not collect—that is, permanently store—any personal identifiers from these passports, so no-one need fear privacy violations.

As well as verifying identity, SmartGate will also send the passport details of the person undergoing clearance to customs and immigration systems where the passport and visa details will be verified in the same way as they would be if the person were processed manually by a clearance officer. SmartGate will also collect certain information which is currently required to be provided to an officer during immigration clearance. This information relates to health and character checking, and is currently collected via the incoming passenger card. Everyone, including users of SmartGate, coming into Australia will still be required to complete incoming passenger cards.

The amendments do not introduce any new processing requirements; they are designed to make the process more efficient whilst retaining the security of our borders. These changes simply enable eligible passport holders to choose to be processed in immigration clearance by an automated system instead of a clearance officer. If there is any indication that the person should not be cleared, or a special category visa not granted, SmartGate will refer the person to a clearance officer for manual processing. The process will not prevent officers from seeking further information from clients if required.

This measure will also enable selected New Zealand citizens to be cleared via SmartGate and to have their special category visa granted automatically. We all know what it is like to stand at an airport and wait while individuals are processed manually by Customs officers who, in many destinations around the world, seem to have anything on their mind other than processing passengers in an efficient and timely manner. The whole process being introduced in Australia will make life easier for visa holders coming into this country. That is a process that I wholeheartedly applaud.

In conclusion, let me say that there can be no true Australian nor true representative of the Australian people who can oppose doing all we can to keep this country safe. I commend the bill to the House.

John Murphy (Lowe, Australian Labor Party, Shadow Parliamentary Secretary to the Leader of the Opposition) Share this | Link to this | Hansard source

Whilst I rise to speak in support of the Migration Amendment (Border Integrity) Bill 2006, there are some anomalies with the direction of the interphase with border protection law and the operation of migration law that raise what I see to be a confusing development in terminology with migration law and the law generally. I draw to the attention of the House this evening the provisions relating to the amendments concerning what are called ‘special purpose visas’.

Bills Digest No. 57 of 2005-06 on this bill cites the provisions of section 33 of the Migration Act dealing with special purpose visas. As members of the House are aware, section 33 provides that, by operation of law, certain persons are holders of temporary visas and are therefore eligible to validly travel to, enter and remain in Australia under certain conditions. Further, Migration Regulations 1994 prescribe, at regulation 2.40, those types of persons who are eligible to hold special purpose visas. The bill before us this afternoon seeks to amend subsection 33(5) of the act in dealing with visas that cease to have effect.

The point I wish to make to the House today relates to the class of persons known as diplomats. As the Minister for Immigration and Citizenship is aware, there is a discrete visa class specifically provided for in Migration Regulations 1994, known as the diplomatic (temporary) class TF visa. The only subclass of visa within this class prescribed in schedules 1 and 2 of the migration regulation is the 995 subclass visa. The 995 is granted to those defined in the Migration Regulations as ‘diplomatic or consular representatives’ or ‘international representatives’ so prescribed. These personnel are discrete persons who are members of foreign governments’ diplomatic corps who reside temporarily in Australia. It is a fundamental provision of a grant of the 995 visa at Migration Regulation 995.22.1 that:

The Foreign Minister has recommended in writing to the Minister that the visa be granted to the applicant on the basis of the applicant being (a) a diplomatic or consular representative or (b) an international representative ...

It is further prescribed at Migration Regulation 995.321, with respect to attached parties to a 995 visa primary applicant, that:

The Foreign Minister has recommended in writing to the Minister (of Immigration and Citizenship) that the visa be granted to the applicant to accompany a person who seeks to satisfy the primary criteria.

The reason for bringing the 995 visa into this debate today is to ask the simple question: is a diplomatic (temporary) subclass 995 visa holder the holder of a special purpose visa? The immediate answer would appear to be no, until we match the regulatory definition of special purpose visa against the criteria for a 995 visa. Let us say a child of a diplomat is also the holder of a 995 visa by virtue of their parent being the primary 995 visa holder. Migration Regulation 2.40 specifies that ‘guests of government’ are automatically special purpose visa holders. A plain reading would suggest that 995 visa holders are not special purpose visa holders. However, this conclusion is brought into confusion when one reads the Department of Immigration and Citizenship fact sheet titled ‘New Zealanders in Australia’. I quote from the fact sheet:

Note: Children born to a New Zealand parent who was living in Australia temporarily as a diplomat or as the holder of a special purpose visa (i.e. certain diplomatic officials, aircrew or armed forces and their families) are not Australian citizens by birth.

Fact sheet 17 expressly notes that there are certain diplomatic officials who are also holders of special purpose visas. The question is: do these diplomats on whom fact sheet 17 contemplates also hold a 995 visa? If so, are such diplomats subject to the provisions of this bill or not? It would appear that there are two types of diplomats contemplated within our migration law. There are those diplomats and consular staff that are 995 visa holders and there are ‘certain diplomats’ who are holders of special purpose visas by operation of law. If true, this situation is, in my view, highly unsatisfactory. I am not aware if the Department of Foreign Affairs and Trade has precise numbers of diplomats and consular staff from foreign sovereign states in Australia. What I can guesstimate is that there will be several thousands, if not tens of thousands, of diplomats and consular staff residing in Australia temporarily at any one time. Given that these people will be, by definition, of very high security sensitivity, it is therefore imperative, in my view, that we get our law right in this bill and the border protection purpose this bill seeks to preserve.

Therefore, I call upon the Minister for Immigration and Citizenship to seek clarification from his legal counsel on one question of high importance: is there, as fact sheet 17 suggests, a subset of diplomatic temporary visa holders who are also holders of special purpose visas? I do not expect the minister to give me an immediate answer in summing-up on this bill when we come to the conclusion of the debate shortly, but that is what I am asking to be clarified.

When one reviews schedule 1 of the Migration Regulations, one notes that the 995 visa has no prescribed application form. This lends weight to the analogy of the prevailing special purpose visa, for which there is also no prescribed form or application process. This is so because, in the case of both 995 and special purpose visas, it is the circumstance which gives rise to the automatic grant of visa by operation of law. It is true that, whilst the 995 visa has no prescribed application form per se, the application must be in writing and have the approbation of the Minister for Foreign Affairs. The Procedures Advice Manual, schedule 2, entitled ‘Applying for a diplomatic (class TF) 995 visa,’ states, ‘The Minister for Foreign Affairs must supply the Minister for Immigration and Citizenship a copy of the note verbale provided by the relevant foreign ministry or mission.’

In similar fashion, the Bills Digest notes that, in the explanatory memorandum to this bill, the application process for the special purpose visa is such that the ‘visa is granted by the operation of law to noncitizens who either come within a prescribed class of persons or are a person or a class of persons declared by the minister to hold special purpose visas’.

In the case of the 995 visa, we see that the grant is subject to the advice of the Minister for Foreign Affairs, whilst in the case of the special purpose visa the grant is subject to operation of law by regulatory schedule of certain persons. So in addressing the desired border protection outcomes of this bill, that would appear to me to be consistent with the treatment of all diplomatic and consular staff, including their attached parties. Further, when we add all secondary applicants to the primary diplomatic and consular and international missions’ staff, the number of 995 and special purpose visa holders swells to an even larger number.

For this reason, I urge the minister to consider tidying up what appears to me to be a number of messy loopholes in this legislation, specifically unifying the law under the existing regime, which appears to have three types of visa holders, namely, (1) those exclusive 995 visa holders; (2) those 995 visa holders who are also special purpose visa holders by the operation of law; and (3) those holding exclusive special purpose visas.

Don Randall (Canning, Liberal Party) Share this | Link to this | Hansard source

I am pleased to make a contribution on the Migration Amendment (Border Integrity) Bill 2006 today. Australia has a very proud record of border integrity, particularly in the last 11 years. The border integrity measures taken in this country to ensure that we know who comes to and goes from Australia have been very significant in not only maintaining Australia’s integrity in migration and transparency but also in controlling many other undesirable elements, such as people with bad character, people involved in nefarious activities coming to Australia unheralded and people who would be a threat to our health et cetera.

The primary aim of this bill is to amend the 1958 Migration Act in two ways. The first aim is to strengthen Australian border integrity. The bill will amend the Migration Act to allow a declaration ceasing a special purpose visa to take effect at a time specified in the declaration. Currently, such declarations can only take effect at midnight on the day on which they are signed. The second aim of this bill is to amend the Migration Act to enable the introduction of automated border processing for e-passport holding citizens and selected noncitizens arriving and departing Australia to be immigration cleared by having their identity and their visa or other Australian citizenship status verified by an automated computer system called SmartGate. I understand the SmartGate legislation will be coming to this House within the next few days. This will synchronise well with the bill that we have before us today, which I think is quite timely.

This government, as I have said, has a strong record of border security. It is there to protect our borders. To ensure that, this government has funded major expansions in new technological areas used by Customs and the Australian Federal Police to increase border protection measures, to implement more efficient processing of passengers and to assist in the detection and prevention of terrorism and serious crime. It has also taken action to shield people in Australia from developing criminal trends, such as identity fraud and the manufacture of synthetic and illicit drugs and money laundering. It has also taken measures to develop one of the world’s toughest aviation security systems to protect Australians and overseas travellers.

I will not go through and regurgitate the whole syntax of this bill, which many people who spoke before me have done in a most eloquent way. We all know what the purpose of this bill is. But I am going to use the opportunity as the last speaker on this bill to make a small comparison between Australia’s fine border integrity measures and, primarily, those of the United Kingdom, and you will see why Australia has a proud record.

But before I move on, I wish to deal quickly with special purpose visas. We know that they can be granted by the minister, and that these special purpose visas are available for people coming to Australia on discretion where they are able to receive them and have them withdrawn. But the problem is, as I said in the introduction, the withdrawal does not take place until midnight. We want to ensure that there is flexibility in this arrangement so that, should somebody be deemed to be undesirable or have an issue where they should be removed before midnight—in other words, so they do not abscond and disappear into the ether of the Australian community—that order can be given well before that cut-off time of midnight.

In terms of the SmartGate electronic passports, it is very interesting to note that Australia is at the leading edge of the technology in this world for these types of new passports. Yes, we know that current passports have an electronic chip in them which allows the storing of information such as photos, signatures, dates of birth—all the things that are on the inside of your passport—and documentation regarding your coming in and out of the country, where you have been, how long you have stayed et cetera. But SmartGate uses facial recognition biometric technology to perform a face-to-passport check to verify the person’s identity. The biometrics stored in the chip contained in passport will be matched with the image of the passport holder at the border. As well as verifying identity, SmartGate will also send the passport details of the person undergoing the clearance to Customs and the DIAC border systems, where the passport and visa details will be verified in much the same way as they would be verified if they were doing it in a face-to-face manner with someone from Customs.

One thing I would like to say to the minister—I see the minister has come into the House; I have mentioned this to him—is that I find it absolutely supportable that we are taking this leading technology on, because of the ease and expediency of processing people, but not that we are still going to retain these silly passenger cards. We all know that anyone who has flown overseas and come home has to sit there on the plane in the middle of the night or after hours of no sleep and fill in this mundane information about where you have been, what your middle name is, the purpose of your business, how much cash you have on you and all this sort of garbage. There must be tonnes of cards stored in containers somewhere, from people who have come through Customs, and all these passenger entry cards—and passenger exit cards, by the way—have piled up. They tell me that they deal with this electronically. The information is put onto electronic storage and this then goes off into some database somewhere and is used sometime later.

We are not a Third World country where we have to sit there and manually write in those little block boxes—hoping to hell you get all your letters in the amount of boxes provided—on the passenger card so that you can provide the information to the person at the gate in the wee hours of the morning. I think it is an absolute flaw to have this duplication. You are trying to fast track entry to and exit from this country by doing it in a technological manner but you are maintaining these ridiculous passenger entry and exit cards. As I have said to the minister previously, he might be one of the ministers who will cut through this unnecessary bureaucratic red-tape process that most people around the world abhor as they sit on the plane or try to get off the plane.

And for goodness sake, what if you mess it up? You have to go right to the back of the queue and start again to fill it in. Or, if you are in those marvellously long queues at the airport and you suddenly realise that you have not filled in your card properly, you have to get right out of the queue. On the edge of the thing, there might be a spare card or there might be someone handing out one of these entry cards. You have to start again and hope to goodness that you do not mess up that one too, because you would have to go to the end of the queue again. It is just crazy. So, Minister, I would appreciate it if you could take that on board, because I am sure I am not on my own.

That leads me to this fact. When you go through Heathrow airport you have to do all this sort of stuff. You are herded like sheep through all these tapes and corrals. We are herded here a bit, but it is even worse there. You would think that the British would have a far better system than we have, because they are supposed to be at the cutting edge of European technology, but they do not. When I had a study trip to Europe some years ago I was able to go to the various migration agencies. I went to London House and to the House of Commons and I spoke to people in migration because that is an interest of mine. I am the chair of the Joint Standing Committee on Migration and I am chair of the government members’ committee on migration. I learned that the British are in awe of our migration tracking system. In fact, they say to us, ‘We would love to have the ability that you have to track people who come in and out of your country because, quite frankly, we’ve really got no idea.’

That leads me to an article written some time ago by Ben Harvey in the West Australian under the heading ‘UK groans under its soft refugee system’. There is a fair bit about refugees in the article but there is also a fair bit about border integrity. The article alludes to the fact that Mr Blair was asked by the journalist, ‘How many illegal immigrants do you have in Britain today?’ He was asked 20 times, and 20 times he refused to answer how many illegal migrants he had in the country. The fact is that he knew what the answer was and that is why he did not answer it. There are something like 500,000 illegal people in Britain today. There are 500,000 there today because Britain does not know who has come, who has gone, and where people have gone after they arrive there.

This allows drug barons into the place, who become very wealthy and end up in enclaves of no-go zones. Even the police are too scared to go into the no-go zones because people are running drugs and brothels in those no-go zones where people of no identity live. This article goes on to say:

The system is blamed for a rise in infectious diseases, including HIV and TB, in English cities and has created a hated under-class which does not pay tax but bleeds the public health system of millions every year.

Britain’s most senior police officer said the system let at 1east 100 al-Qaida terrorists disappear into British society.

That is the negative effect of when you cannot track people at your borders when they are coming into your country. Britain is groaning under this system, as the headline says.

When members of the British parliament were asked about the Australian system, one of the party members said:

The Australians don’t do a great deal to impress me, but at least they know who in the hell is living in their country.

Poll after poll in the UK now shows that 85 per cent of people do not believe the government has migration under control. The British MP went on to say:

If you want to impose this chaos on your country—

meaning Australia—

then you are mad.

The article in the West Australian goes on to say that, for example, 37 per cent of those on student visas in Britain from Ghana could not be traced, suggesting they did not leave the UK when their papers expired—because they do not know who they are. It said that one of the people that got to stay was an al-Qaeda terrorist named Kamel Bourgass, a failed asylum seeker who was getting $5 million in legal aid to appeal against his conviction for killing a policeman in 2003. The scale of illegal immigration into Britain is staggering.

This compares with what is happening in Australia. We know who comes here; we know that the boats were coming here in the early 1990s—thousands of them at one stage. More recently we are very proud of the fact that we not only know who comes here but we detain them, which, as we know, was originally Labor Party policy. Gerry Hand first rolled it out, with the Port Hedland detention centre being one of the first detention centres. So it is obviously bipartisan policy that we do not allow people to wander around and be released into the community once they have been detected.

When David Blunkett, the former British Home Secretary, called for an amnesty—they just could not find the people who had disappeared, who had arrived without passports; nobody knew who they were or where they went—something like 50,000 people showed themselves. That is the danger that you put your country into if you do not have decent border security. When a British Labour MP was told that some Australian politicians were lobbying to abandon this policy or to go soft on it, he said that the government should hold its nerve on this one:

In a few years time we will have the courage to introduce a policy such as that. It is not particularly in keeping with our traditions at the moment, but only parties pushing the barrow are from the extreme right. But it will happen. The system as it stands is a joke and it is a joke that has been played out upon the British taxpayer. Whichever party has the guts to do something about this will win in a landslide.

I raise the British example. I have also seen examples of this in Italy. The Italians have a very porous border. They do not detain people for more than a number of days. They encourage them to move on. They try to shove them up to Germany, because Germany has a pretty soft approach as well. That has been one of the reasons why the German economy has suffered some setback, because they do not control the people. We have seen it in the United States, when the wetbacks, as they are known, arrived from Mexico. Because they do not know who they are and they cannot become citizens, they do not pay tax. They use the government facilities and all the public amenities, but because they cannot be recognised as citizens they work but they do not pay tax. So that is a negative as well.

This bill further reinforces the strength and integrity of the Australian migration system: we know who is coming and who is going and how long they are here. This bill is timely and necessary and I support it.

Kevin Andrews (Menzies, Liberal Party, Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

in reply—I thank members for their contributions to the second reading debate on the Migration Amendment (Border Integrity) Bill 2006. Australia has the most effective and comprehensive entry system in the world, basing its success on its multilayered nature. Advanced passenger processing, a universal visa system and verification at the border that noncitizens have valid visas are aspects of this multilayered approach. The measures contained in this bill seek to further strengthen this multilayered system and maintain Australia’s position at the forefront of border control technology and initiatives.

The proposed amendments are designed to allow holders of an eligible e-passport to be immigration cleared by the automated border processing system, SmartGate. Eligible persons can choose whether to use SmartGate or to be processed by a clearance officer. SmartGate takes advantage of a new passport technology and facial recognition technology to improve the way in which passengers’ identities are verified. These new processes will help to combat identity fraud and act as a deterrent to the use of forged or stolen passports. Furthermore, automated clearance at the border will allow greater volumes of passengers to be processed and decreased passenger processing time while enhancing the integrity of border processing.

The proposed amendments will also enable New Zealand citizens who hold an e-passport to be granted a special category visa using the automated system without the need for a clearance officer to be present. New Zealand citizens who do not hold an e-passport will continue to be processed and granted special category visas by a clearance officer.

A number of false claims were made during the debate. Firstly, I would like to reassure members that SmartGate has been independently tested and has been proven to be successful in a border processing environment. Customs trialled the SmartGate system at Sydney and Melbourne international airports over a three-year period. During this trial all SmartGate transactions were monitored and the results were continuously analysed and used to improve the technology. Independent field evaluations conducted by the Defence Science and Technology Organisation proved SmartGate to be highly accurate for identity verification purposes. A technical analysis report of SmartGate prepared by Dr James Wayman and Dr Tony Mansfield of the United Kingdom Biometrics Working Group concluded that SmartGate streamlined the customs and immigration process for users and maintained the integrity of the border.

It is important to note that, whilst SmartGate has the capability to identify false and fraudulent documents, it is not a stand-alone system. SmartGate is part of a much larger border protection approach that enables the border agencies to protect the border while at the same time facilitating legitimate border crossings for the vast majority of travellers. SmartGate facilitates legitimate travel and complements several other mechanisms in place targeting illegitimate activity.

The bill also proposes an amendment to special purpose visas. Special purpose visas are distinct from other visas as there is no visa application process and the visa is granted by operation of the law. They facilitate the lawful travel to and entry into Australia of certain groups of travellers such as crew members of non-military ships, airline crew, guests of government and, recently, athletes participating in the Commonwealth Games.

Despite holders of special purpose visas coming from low-risk groups, there are occasions where it is appropriate to seize a person’s special purpose visa. Most commonly, this is in relation to foreign sea crew who may be considered at risk of deserting a vessel in Australia, or where there is a character or health concern. The minister can declare that a person’s special purpose visa has ceased or that a special purpose visa should not be granted to a person. Currently, the minister’s declaration has effect only at the end of the day on which the declaration is made. The proposed amendments will allow the minister to declare what time the declaration comes into effect and consequently enable the department to better manage the special purpose visa client base. The measures proposed in this bill are designed to further strengthen the integrity of Australia’s borders whilst also improving the efficiency of the immigration processes and administration.

Finally, I would like to reply to the comments made by the member for Canning, who was the previous speaker in this debate. The member for Canning commented on the need to fill in passenger cards, particularly when returning to Australia. The information contained on those passenger cards is important for a number of purposes. It is important particularly for New Zealand citizens. It is important in terms of the declaration which a person makes when filling in that card—for example, disclosing whether or not there has been previous criminal or illegal activity. It is also important for a much broader purpose than simply immigration, as the data is collected by the Australian Bureau of Statistics and is then used by various government agencies within Australia. These agencies use the data for planning their programs and even for the allocation of resources in some instances. It is important data that is collected, and we are grateful, if I may say so, to passengers coming into Australia for their forbearance in filling in the passenger cards. The passenger cards help us in Australia to carry out a range of other activities in a way which we might not be able to do if we did not have that data. I commend the bill to the House.

Question agreed to.

Bill read a second time.