Concetta Fierravanti-Wells (NSW, Liberal Party) Share this | Hansard source

I rise this afternoon to speak on the Migration Amendment (Review Provisions) Bill 2006 [2007] and the Migration Amendment (Border Integrity) Bill 2007. The current multilayered approach of entry into Australia incorporates such innovations as advanced passenger processing, a universal visa system and the coordination of DFAT and the Australian Customs Service. This continues to ensure that Australia has one of the most comprehensive, successful and sophisticated entry systems of any nation in the world. Additionally, these processes continue to ensure that the systems controlling Australian border integrity remain synonymous with notions of safety and security tempered by the values of justice and making sure that fairness is observed.

Consistent with the principles of safety, security and fairness this bill proposes to amend the Migration Act 1958 in two ways to further preserve the integrity of Australia’s border. This will be achieved through the introduction of new facial recognition technology and an amendment to the act in relation to special purpose visas. This government has a strong record on border security and has proactively pursued measures to guarantee the continuing integrity of our strategic frontier. The coalition has funded major expansions in the use of the technologies in support of those wonderful and selfless Australian men and women of the Australian Federal Police and Customs who serve at the very coalface of border security in the fight against terrorism and serious crime.

The government has further taken action to shield Australians against such criminal trends as identity fraud, money laundering and the production of illegal drugs. We have also developed and implemented one of the world’s toughest and most effective national aviation security systems to protect and provide peace of mind to Australians and overseas travellers alike.

This is in stark contrast to the legacy Labor left for us. Labor failed to have a coordinated, forward-looking or flexible approach to border security. It failed to address the risks facing Australia as a destination for people smugglers or to work with other countries in our region to tackle the issue of people-smuggling at its source. During its time in office, Labor’s bad economic management meant that the funding needs of our law enforcement agencies were unfulfilled, leaving Australia a soft target for transnational criminal syndicates and organised crime.

At a time when federal law enforcement and border protection should have been boosted, Labor cut staff numbers in Customs by more than 1,000 between 1990-91 and 1994-95, seriously undermining the ability of Customs to do its vital work in protecting our borders. Of all the issues, none has provided a clearer demonstration of the Labor Party’s lack of leadership than border security. In the midst of the Tampa crisis in 2001 when the government introduced the Border Protection Bill, Labor was initially supportive, as shown in the Hansard of 29 August 2001:

In these circumstances, this country and this parliament do not need a carping opposition; what they actually need is an opposition that understands the difficult circumstance in which the government finds itself ...

Within the space of hours, Mr Beazley had made a spectacular backflip. He said:

The opposition will not support the Border Protection Bill 2001.

The fact is that the coalition government’s tough stance on excision and the Pacific solution is working. It has had a demonstrable deterrent effect on would-be people smugglers. Yet Labor calls it a disaster and wants to replace it with an arrangement whereby a coastguard greets unauthorised vessels and escorts them to Australian territory and the Australian legal system. Such a proposal would mark a return to the past where Australia was a soft target for people smugglers.

It is estimated that by 2009 the number of arrivals and departures at Australian international airports will increase by up to 23 per cent. This will obviously pose additional challenges to immigration clearance systems in relation to both security and the ability to conduct the efficient processing of passenger numbers. Current immigration clearance processes at the border are all performed manually. However, with the introduction of the SmartGate system that has recently been trialled at both Sydney and Melbourne airports, facial recognition and new passport technologies will prove a viable, secure and convenient method of immigration clearance.

The proposal to use an automated system in immigration clearance not only strengthens but streamlines Australia’s border control measures. The proposed amendments are designed to allow for the expansion of this new technology to all Australian citizens and selected noncitizens provided that they hold an eligible e-passport. This convenient and streamlined alternative to the manual processing of immigration clearances is a key budget initiative of the Howard government.

Current Australian passports all contain an embedded microchip that stores much of the same data as that which is contained in the printed version. This includes such data as your photograph, passport number, name, gender, date of birth, nationality and passport expiry. SmartGate’s facial recognition technology verifies a face to passport check of a person’s identity using the biometric data stored in the chip.

In addition to verifying identity, SmartGate also forwards passport details to Customs and the Department of Immigration and Citizenship border systems where the passport and visa details are verified in much the same way as they would be if they were done manually. Once processed, SmartGate will not collect or store any personal information or identifiers from these passports. In fact, the amendments do not introduce any new processing requirements but simply enable eligible passport holders the choice of automated, quick and convenient immigration clearances instead of through a clearance officer.

In addition to enhancing the convenience of immigration clearance throughput, this technology will greatly contribute in combating fraud and act as a deterrent against the use of stolen or forged passports. In addition, this bill also provides for New Zealand citizens who hold an e-passport to apply for and be granted a special category visa using the ease of the automated system.

This bill also seeks to further secure and control the issue and management of special purpose visas. Special purpose visas are temporary visas that allow lawful status to non-Australian citizens of a particular and selected class to travel to, enter and remain in Australia. They cover such traditionally low-risk characters as crew members of non-military ships and airlines, guests of government, and even athletes competing in international sporting fixtures. However, for reasons such as national security, public safety, potential health risks or even character concerns, there are times when it will be appropriate for the minister to cease a person’s special purpose visa.

The act currently provides for the minister to make a declaration that it is undesirable for a person or any class of persons to remain on a special purpose visa. The consequent effect of this declaration is for the ceasing of the special purpose visa. However, where such a declaration is made, the current provisions of the act provide that the special purpose visa remains in effect until the end of that day in which the declaration is made. This is an anomaly that we seek to remedy as no other type of visa remains in effect until the end of the day in which it was ceased. Consequently, as it currently stands, the person who has their visa ceased cannot be lawfully detained until the end of that day even if that person poses some immediate threat to the Australian community or even themselves.

This is of particular concern where, for example, a master of a vessel has reported a crew desertion. In such circumstances Department of Immigration and Citizenship officers would usually cease that person’s special purpose visa and commence processes to locate the person. However, if the person is found on the day their special purpose visa is ceased, the officer cannot detain the person until midnight of that day. This has left Department of Immigration and Citizenship 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 perspective. The amendments will provide that a subsection declaration takes effect at a time specified in the declaration. However, it is notable that the specified time cannot 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 in the declaration it will take effect at the end of the day on which it is signed.

The government also seeks to amend the Migration Act to allow flexibility and the more efficient application of procedural fairness to both the Migration Review Tribunal and the refugee tribunal. Under existing provisions of the act and as interpreted by the Federal Court in the Al Shamry case and in the High Court in SAAP, the tribunals are now required to provide information and invitation in writing. The requirement to provide information and invitation in writing applies even if the issues have been dealt with at the hearing.

The practical effect of these court decisions is creating considerable operational difficulties for the tribunals in their ability to comply with the statutory requirement that their hearings be economical and quick as well as fair and just. Thus, delays are being caused by matters that have already been covered exhaustively at tribunal hearings having to be put to the applicants again in writing following the hearing. The effect of the courts’ interpretation of the procedural fairness requirements has led to a highly technical application of the law in circumstances where no practical injustice can be found in the way the tribunals have dealt with a matter. The proposed bill will amend the act to align the technical provisions with a sensible and practical way that the tribunals can provide procedural fairness. The amendments will insert new provisions which will provide a discretion for the tribunals to orally give information and seek comment from the applicant at the time that the applicant is appearing before a tribunal. However, if the tribunals decide not to orally give information and then seek comment from an applicant at hearing, they must do so in writing under existing sections 359A and 424A. The corollary is that if the tribunals do give information and seek comment from an applicant at hearing they will not be required to also do so in writing under the same sections.

Outside of the context of hearings, the tribunals will still be required to provide procedural fairness to applicants in writing. The Senate Standing Committee on Legal and Constitutional Affairs handed down its report into the review provisions bill on 20 February 2007. The committee recommended that the bill be passed with an amendment so that adverse material may only be provided orally at the election of the applicant. However, the government supports the passing of the review provisions bill in its original form. This is because the recommendation would, to a large extent, nullify the objective of the bill to allow the tribunals flexibility in how they give procedural fairness to review applicants. In addition, the committee’s recommendation would add an impractical process and introduce greater complexity to the conduct of tribunal hearings.

The amendments in these bills are designed to ensure the continued safety and security of our nation, tempered by values of justice and fairness. The use of modem digital facial recognition technologies will streamline and improve the security of our future border entry practices. Tightening the provisions for the cessation of special purpose visas in line with all other visa requirements will only assist our border security agencies in providing a safe and secure environment for all Australian residents. And, finally, the review provisions bill will restore the tribunal’s ability to comply with the statutory requirements to provide a review that is fair, just and economical as well as being informal and quick—as was parliament’s original intention.