Sue Lines (WA, Australian Labor Party) Share this | Hansard source

Along with Senator Macdonald, I was one of the senators on the Legal and Constitutional Affairs Legislation Committee inquiry into the provisions of the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015. It was a really interesting morning that we spent hearing evidence from a range of law agencies, the department, the Law Council of Australia and so on, who expressed their concerns about some aspects of this bill. I would have to say that the majority report and Labor's dissenting report covered off on similar concerns. In our view, the majority report did not go far enough, because the government felt that a number of the issues raised—around privacy, around collection—could be dealt with in the explanatory memorandum. But Labor felt that really, if we wanted parliamentary oversight and proper scrutiny, the concerns needed to be dealt with through a range of amendments—and Labor has put a range of amendments forward to the Senate. And I note today that the government has put some amendments forward as well. I agree with Senator Macdonald that it is good to see, when a Senate committee makes strong recommendations through a majority report, and a dissenting report, that some of the issues raised are taken on board by the government. That is a good step.

The government has stated that biometric checks at Australia's air and sea ports will enable rapid identity verification with domestic and internal security law enforcement and immigration agencies, through portable handheld devices and other sorts of biometric testing. Certainly Labor, along with the government, supports the need for Australia to be able to ensure that people coming into our country, and our citizens leaving, are who they say they are and that we do the utmost to ensure safety at our entry and exit points in this country. As other senators have said, this bill tries to collate a number of tests that are already available under the law, but unfortunately it goes further than that in putting all of those tests together. Certainly Labor sees the need to balance the need for good security with the need for privacy and other issues. In that context, the bill as it currently sits before us, even with the government's amendments, does not quite get that mix right. Maybe there will be some opportunity in the committee stage to further talk about that and flesh that out.

The significant issues with this bill to me just demonstrate, unfortunately, that it is another example of poor drafting and execution by the Abbott government. We often see bills coming before this place which are poorly drafted. I think this bill suffers from that. The government will argue, I am sure, that not much has changed with this bill. Whilst it is true to an extent—there are not wholesale changes being made to the bill; nor are there wholesale changes being made to current practice—nevertheless the changes that are being made are quite significant. That was borne out in our dissenting report and indeed in the majority government report. So Australians ought to be concerned about these changes, particularly when the bill lacks genuine independent oversight and there is no parliamentary oversight.

In our dissenting report on this bill, Labor called for a thorough review by the Privacy Commissioner and, as Senator Macdonald has just outlined, the majority report supported by government senators also called for the Privacy Commissioner to undertake a thorough review prior to the passage of the bill. Both of us called for the privacy impact statement to be publicly released. To put it on a website, you might argue is publicly releasing it, but to not draw it to the attention of members of the committee is a failure by government and the department. Given that privacy was a major issue, I think that the department had an obligation to draw it to the committee's attention through the secretariat that the privacy statement was indeed on the website. To do less than that, I think, continues the suspicion that we already have around this bill.

Labor was not alone in calling for the Privacy Commissioner to look at this bill. A number of submitters to the inquiry shared this concern, a very valid concern of balancing the issues of privacy with securing our borders. We all understand that, but the bill does not seem to cover off enough on the privacy issues. The Law Council of Australia made a very strong submission and some fine recommendations about how we cover off on the security issues. But, of course, making that statement publicly available, drawing it to the attention of the committee simply has not happened and that just makes people suspicious.

Labor also felt that the current obligations to store biometric data needed to be tested from the perspective of the Privacy Act. There are very real concerns about the retention and arbitrary collection of biometric information, concern about the collection of data, its use, who gets access and its retention. None of these concerns have been addressed by the government. During the hearing, I raised the issue of a child subject to a custody order. It could be that biometric data is taken from a child for the purposes of identification in relation to the order. Although the department used the example of fingerprint data, I am not sure how you would have access, in some recorded way, to the fingerprints of an eight-year-old who is the subject of a custody order. How could you have that and how could you check that using a fingerprint scanner? The government was simply unable to answer that, despite having the question put directly to them. We know for a fact that very few children—I do not know of any—who are the subject of custody orders have their fingerprints taken. That question remains unanswered, and the committee asked the department and the government a lot of questions about that.

If this biometric data is taken from a child who is the subject of a custody order, the department was unable to say how that data would be stored and for how long. That is a fundamental question and it is one that all Australians should be concerned about. Yes, of course, we do not want children either trafficked in or trafficked out of Australia, and we do not want children who are the subject of custody orders who do not have permission from parents to leave the country. Of course, we want that picked up at the border. Nevertheless, we cannot overshadow that by saying that we will collect this biometric information and it will be stored. The department was not able to tell us for how long it will be stored, if in fact it would be stored, and what would happen to that information. I posed this question to the government through the department: 'You have taken biometric data from a child who is the subject of a custody order. What happens when that custody order no longer applies?' Again, the government was simply not able to answer the question.

For that child who may have had a custody order applying to them from a very young age and is unaware of that custody order and does not remember being taken to an airport and having biometric information taken, does it mean that will be flagged up every time they come into the country or leave the country as an adult? Again, I asked the department and I got conflicting answers, if you look at the Hansard of the inquiry, with some blurry excuse that that will all be dealt with in policy. I think Australians have an absolute right to know about storage of information, particularly in relation to custody orders and when those custody orders no longer have any bearing. What happens to that information? To date, the government has simply not been able to give us answers to those very real questions. That is a really strong example of where the need to protect children butts up against this issue of privacy and retention.

The Law Council gave very good evidence that it is one matter to collect biometric information; it is quite another to store, to keep and to log to make sure that that information is secure. Again, we were not given any real answers to that. Despite meetings since with the department through our shadows, my understanding is that the committee has not been given answers to those questions either. That question of what happens to that biometric information when that child becomes an adult and whether that is flagged every time they enter or exit the country remains unanswered.

The Scrutiny of Bills Committee also raised concerns about the collection of personal identifiers and that the collection of data by means other than the fingerprint scanner would not have parliamentary scrutiny or oversight. The committee questioned the claim in 'the statement of compatibility that the measure is compatible with the rights to privacy. However the committee makes the point that "the right to privacy needs to be understood in the context that the power authorises methods of collection which are not limited to that which is explained and justified in the explanatory material".'

The Scrutiny of Bills Committee stated that parliamentary oversight could be achieved through the use of a targeted amendment which included appropriate safeguards. I think that advice from the Scrutiny of Bills Committee is good and I would urge the government to take that on board and perhaps look at an amendment in the terms that have been suggested there. A similar view was expressed by the Law Council of Australia but, unfortunately, to date we have not seen any amendment from the government which would allay any of those very real concerns.

The other concern—and this was raised again by Senator Macdonald, but our response to the solution is different—is in relation to children and vulnerable groups who have some sort of disability which makes it impossible for them to either fully understand what is happening to them or to ask the appropriate questions.

The bill proposes that data can be taken from children and vulnerable groups. The departure here is that, into the future, it can be taken without the concept of the parents or guardians. Of course, I can understand there will be occasions—hopefully, not many—when we do have to take data without the consent of parents or guardians. I absolutely understand that and, if I had a child that was subject to a custody order, I would want that to be a feature of our system. But, again, how children would be protected, and how the dignity and the rights of children and vulnerable groups would be protected, was all left to policy. I do not think—and others at the inquiry also agreed—that that was strong enough. It is important that on these matters we have parliamentary oversight where we can really see what is happening, where we are taking hopefully just a few children without the consent of their parents.

It would be easily dealt with if an independent person was in the room who could act in the interests of that child or that vulnerable person. When I questioned the department about that during the inquiry, they gave the example of the fingerprint scanner and said, 'Well, we'll be probably using the scanner.' I would question: if you are using the scanner for children, where is the data coming from that it is being compared with—or is that the first collection point? Presumably, we do not have the fingerprints of the children that we are seeking to protect. It is certainly not in anything that I am aware of, or is this an exercise where we are using the scanner to pick up fingerprints in the first instance and use that as the first comparator? But the department is telling us that that fingerprint data will not be retained. It is not clear and, in terms of why they felt we did not need the independent oversight from a guardian or some other person was because: 'We'll be using the fingerprint scanner out in the public arena.' That is what they said in the Hansard, and that does not make anything safe.

We have people mugged in the public arena. We have people murdered in the public arena. Just because something is done in the public arena does not mean that a child is safe. Most people going through our immigration are focused on getting through Customs and Immigration. Most of us are not watching what is happening to others and, even if we are, it is unlikely that we are going to put our hand up and say, 'Excuse me. Just what are you doing over there?' The suggestion that we will protect children and vulnerable people because this will all be done in the public arena quite frankly is a nonsense.

The government's amendment that I have seen today does not actually meet that description. If I am going through Customs and immigration and I see a person having their fingerprints taken, I would immediately think: 'Wow. What have they done wrong?' Or 'What is happening here?' I think if we are going to conduct this with dignity, it has to be done out of the public arena but it should, nevertheless, always be done in the case of children and vulnerable people with an independent advocate present.

It is not a hard ask to have an independent person present. If we are serious about protecting the rights of children—all of their rights: their right to safety, their right to be safe, their right for custody orders to apply—then putting that independent guardian in place where we are taking that child's biometric information without consent seems to be a small price to pay, given that we hope it is not going to be very many children affected or indeed vulnerable adults. I would urge the government to look at that suggestion and put that independent oversight in. I do not, as I say, think it is too high a price to pay to make sure that there is independent oversight and that a child is always treated with respect and is always safe. That can only be provided when there is independent oversight.

A policy cannot protect a child; only an independent advocate can do that. It is not fair to put the onus of protecting a child onto department officers who have a different job to do. Their job is to take the biometric information and to do that with respect and dignity. It is not their job to stand in as guardian for that child, and you cannot write the safety of the child or the vulnerable adult into a policy document.

So the government's amendment, which notes that the data will not be collected in a cruel, inhumane or degrading way, is a step forward but I think it needs a little more flesh on the bones. What does that mean? I would hope that the government in the committee stages talks about what they mean by that, because what is written in a policy and the process for carrying that out are two completely different matters. They are not related at all. A policy could say X, Y and Z, and there are probably already a significant number of policies in that regard. We want to see actions and we want to see children and vulnerable adults protected.

Labor has three amendments with regard to this bill. They go to the storage of data, the vulnerability of children and adults, and the very important issue of privacy. I would urge the government to look at them seriously. We do support the need for good security at our borders. We do support the protection of citizens and noncitizens, but this bill, the wide powers, just go too far. Labor has got very sensible amendments that we would urge the government to look at seriously, and we can get on and support this bill. Thank you.