Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (1) and (2) on sheet 5238 together:

(1)    Schedule 1, item 2, page 4 (after line 2), at the end of section 359AA, add:

        (2)    Information adverse to the applicant may be provided orally only at the election of the applicant.

(2)    Schedule 1, item 18, page 6 (after line 23), at the end of section 424AA, add:

        (2)    Information adverse to the applicant may be provided orally only at the election of the applicant.

As I indicated in my speech in the second reading debate, these amendments are recommendations of the Senate inquiry. They are about allowing information which is adverse to the applicant at the Refugee Review Tribunal or the Migration Review Tribunal only to be provided orally rather than in a written form at the election of the applicant. We believe that, as I indicated in my speech, these amendments improve the bill. We still have concerns around the bill.

These are the recommendations of the Senate inquiry that looked at this legislation. We think it is very difficult for applicants in the review tribunals on migration and refugees, particularly when they have language difficulties, to understand what is going on. We are not saying that you cannot have oral evidence, but we are saying it has to be the choice of the applicant that adverse information come through in oral rather than written form. I have outlined a number of these issues already in my speech in the second reading debate, and I am happy to simply proceed with the amendments.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

As Senator Nettle said, this was the subject of comment by the Senate committee. I have covered that in the speech in reply which I incorporated earlier. But I will go over that again.

It is the government’s view that these amendments would largely nullify the objective of the bill to allow the tribunals flexibility in how they give procedural fairness to review applicants. In particular, the proposed amendment removes the ability of the tribunals to control the process by which adverse information is provided to applicants. We believe it introduces a process which would involve greater complexity and would prove to be impractical. It could introduce a process that could be abused and it could result in applicants who wish to deliberately delay the review process simply refusing to respond to adverse information put orally at the hearing, even where they are perfectly capable of doing so at that time. So it is a situation where we believe the flexibility of the tribunal should be maintained, and the tribunals should govern the process by which the adverse information is provided to applicants. I understand that is a fundamental difference from what the Greens are saying, because they are saying the applicants should have that choice. We believe that if that is provided for in the manner that is stated, then the situation could prove to be not only impractical but also somewhat complex.

So, for those reasons, the government opposes these two amendments. I understand the Greens’ amendments cover much the same ground as those to be put by the opposition, and the comments I have made apply to the opposition’s amendments as well.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I understand that the Greens’ amendments and our amendments are similar, in the sense that they cover the same area. Since Senator Nettle has moved the Greens’ amendments I will speak to them now, and so, when I move Labor’s amendments, I will not speak to those at length—unless the chair can suggest another way of proceeding?

Steve Hutchins (NSW, Australian Labor Party) Share this | Link to this | Hansard source

No; you may proceed, Senator Ludwig.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

Senator Nettle raised the fact that, in the Senate Legal and Constitutional Affairs Committee report, there were concerns about the bill which ultimately led to the committee recommending that the discretion to communicate adverse information orally should only be enlivened if the applicant consents. If the applicant did not consent then the tribunal’s obligations would default back to the requirement to communicate in writing. The committee only made two recommendations: (1) that the bill be amended so that adverse material may only be provided orally at the election of the applicant and (2) subject to the preceding recommendation, that the bill pass.

It is one of those areas where, on the one hand, you want proceedings to be as informal as they can be so that parties can be heard and decisions made. It is supposed to be a place where people can get a decision relatively early in the process. But, on the other hand, you do not want parties to lose any rights along the way either. One of the concerns is that, if adverse communication is provided in writing, a person can reflect upon it, take it away to get legal advice and at least pause and think about it, but, if it is not, we could quickly find that the ability to correct the record has been lost. You would then have to go through some other mechanism to do that. There is that concern. I do not think the government has been able to provide a sufficient and cogent argument to persuade Senator Nettle or the Labor Party that this process that we are adopting is the best. We will ultimately support the bill, but we would prefer that the government adopted the committee recommendations in this area.

I also foreshadow the Labor amendments which give effect to the committee recommendation that the applicant be able to elect for the tribunal to communicate the information orally. The government has already indicated that it will not be backing that committee recommendation. It seems that it has the numbers today to be able to ensure that is the outcome. We believe that amendment should be supported though because it is likely to assist in ensuring the applicant understands the process and it would assist the applicant in trusting the tribunal’s decision.

They are the broad sweep of matters. We might end up revisiting this if it does not work. I do not want to see a situation in estimates where we start inquiring about how this process works and whether or not it works effectively. Estimates is a process where we do get that opportunity, but it is not one that I want to use for this. There are other areas that we can explore with the government during estimates. If the government can provide, or undertake to provide, information on how the process works, it would be helpful. If they could provide statistics on the number of times this device is used and whether or not there are complaints in the system, those types of things would help applicants understand. Additionally, I am sure that the government will go through a process of advising applicants in the system that this will be a particular way that information can be orally provided. Those are the types of things I expect them to do. I will certainly have the opportunity to check on whether they are doing it. Perhaps if I mention it now, it can forewarn them at least. With those words, I commend the Greens amendment, which we will support.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

I can give the undertaking which was sought by Senator Ludwig. Of course it is a process which we will keep under review. The process, and the various statistics which apply to it, will be made available. I see no problem with that.

Question negatived.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

by leave—I move opposition amendments (1) and (2) on sheet 5239:

(1)    Schedule 1, item 2, page 3 (line 17), before “the Tribunal”, insert “if the applicant consents,”.

(2)    Schedule 1, item 18, page 6 (line 5), before “the Tribunal”, insert “if the applicant consents,”.

I have already spoken in part on these amendments. The bill seeks to ameliorate the anomaly caused by the High Court and Federal Court decisions that have imposed a rigid requirement. That is what we are debating today. There is an overly onerous administrative burden on the MRT and RRT in order to satisfy statutory due process requirements and hence the bill confers a discretion on the tribunals to the effect that they can only orally communicate the particulars of any information that would be the reason, or part of the reason, for affirming the decision under review and invite the applicant to comment on the information. These amendments, which seek to give effect to the Senate Legal and Constitutional Affairs Committee recommendation, recommend that sections 359AA and 424AA be amended so that the discretion to communicate orally can only be enlivened when the applicant has given permission.

It would be a far better position for the government to adopt. I understand that the government has, then, at least listened in part to the debate in respect of the Greens amendment and provided some undertakings. As I said, in the event that our amendments are unsuccessful, we will nevertheless support the bill because it does go to at least ameliorating the anomaly that has been thrown up.

Question negatived.

Bill agreed to.

r2642

Bill—by leave—taken as a whole.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

I have outlined some of my concerns already my speech in the second reading debate. I wanted to hear from the government on the error rates for facial recognition technology in the trials of SmartGate. The information that the minister’s office provided to me earlier is an Australian Customs Service document, Overview of SmartGate trial, from February 2004. Is there anything more recent than that? This is a technology that is changing—I hope that it is improving—and I wondered about the current status of the error rates.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

I think the report that Senator Nettle is referring to, and the most recent evaluation, is that carried out by the Defence Science and Technology Organisation. That was a technical evaluation of SmartGate. The results showed that the percentage of users incorrectly rejected by the system was two per cent and the percentage of falsely identified users was less than one per cent for each presentation of the passport. So in the first case the accuracy was 98 per cent and in the second case it would have been 99 per cent. I think those statistics were referred to by Senator Nettle in the second reading debate. That is the current assessment that we have.

Of course this is technology which is, like any technology, evolving. We will have the trial in Brisbane, and the rollouts in Sydney and Melbourne will follow. Certainly we will have an evaluation from that trial and that will give us an ongoing assessment of it. It is the government’s view that this is technology which is proven—it has been part of a comprehensive three-year trial at Sydney and Melbourne airports. They were much smaller trials, involving a discrete group of passengers, if you like. The ones that we are embarking upon in Brisbane and subsequently in Sydney and Melbourne will be much bigger.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

Could the minister indicate whether the government is prepared to table the technical assessment by the Defence Science and Technology Organisation about SmartGate. I accept what the government is saying, but this is, as you indicated, a complex and changing technology. It would be useful to have the information on board, if that was possible.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

I do not have that report with me, but I can undertake to table it.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

The Customs Service information that I got also refers to the expert evaluation done by Dr James Wayman and Dr Anthony Mansfield. Is it possible for that to be tabled? The reason in particular I am asking about tabling that piece of advice is that there are comments by Dr James Wayman, the Director of Biometric Identification Research at San Jose State University in California, in the Washington Post about this issue. In that he indicated that facial recognition technology was not reliable enough to be used on a wide scale. His comments as reported in the Washington Post were:

“Facial recognition isn’t going to do it for us at large scale,” Wayman said. “If there’s a 10 percent error rate with 300 people on a 747, that’s a problem.”

I note the comments in relation to his report in this Customs document that we have and the discrepancy in the comments he has made there and the comments he has made in the Washington Post. Does the government have an explanation for that discrepancy? Were they different trials he was talking about? Was it a different type of evaluation? I understood those comments were about SmartGate. I could be wrong. I wondered whether there was any possible explanation for that discrepancy. In order to assist with that process, is it possible to table the expert evaluation that was done by Dr Wayman and Dr Tony Mansfield?

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

Certainly I have the report by the authors, Dr Wayman and Dr Mansfield, here. I will table the report. The report mentions the recent recommendation by the International Civil Aviation Organisation that facial recognition is the preferred biometric measure for border-crossing documents. That is quite an interesting recommendation by that body, because it controls aviation internationally.

I am not aware of the article in the Washington Post. The only thing I can say is that he may well have been referring to a system of comparing faces on a database rather than face to face, which is the SmartGate situation, where you place your passport down on the reader and the camera then reads your face as you stand in front of it. If I am wrong I will certainly clarify that but, as I understand it, comparing faces on a database is much like ‘face in the crowd’ technology, where you look at a database of faces. It does not present in the same way as with SmartGate. A consequence of that could be different results.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

Thank you, Minister; I appreciate that. As far as the Washington Post article is concerned, I do not know either, so if there is any more info on that that would be great. I have a couple of other questions. As I mentioned in my second reading debate contribution, I understand there was an incident using SmartGate when two Asian businessmen swapped identities and were accepted through. Have the problems that led to that circumstance been addressed in any way: the operation of the system or the technology? That is just one situation I am aware of. There was public debate at the time that pointed to some difficulties with SmartGate. I just wondered if the difficulties that led to that instance have been identified, improved or addressed.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

I have sought advice from the officials, and we are not aware of that situation. We will have to take that on notice. I am sorry we cannot give an answer here and now, but we will get back to Senator Nettle.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

I have two other questions to ask in this arena. The first is: because the idea is that the SmartGate technology will replace the manual checks that Customs officers would normally do, has there been any assessment in the process of setting up SmartGate of the potential for the skills and the judgement of Customs officers to be undermined because they are not regularly involved in manual checking? The idea is that people will use SmartGate rather than manual checking. Everyone accepts that where there is an error there will need to be manual checking. Is that an issue that has been addressed in any of the assessments? Is it of any concern?

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

In relation to the primary line at the airport, there will still be many passport holders who will have to be manually checked because the SmartGate system will only apply to a passport with an e-chip in it. That is what we are doing with Australian passports. If there is a rejection then that person is directed to a Customs officer, so there will still be training of Customs officers to deal with people in the time-honoured fashion. The SmartGate approach also involves the training of Customs officers so they will be ‘ambidextrous’. I still see many people being processed at the primary line by Customs officers because their passports are not capable of being part of the SmartGate process, so the skills will not be lost.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

The final question I have is: how will you cope in a circumstance where the SmartGate system breaks down? What do you do at that point? Obviously the whole idea is to speed up the efficiency of the process. Every technology breaks down every now and again. Do you then have to triple the number of Customs officers? Is that part of the strategy of the way it is implemented, that you have a scenario for what you do in this instance, so that you have the capacity for your staff to come in and deal with that situation? Has that been part of the assessment and implementation process?

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

I think it is fair to say that the only thing certain about an IT system is the lease payments. I see Senator Ludwig having a good laugh there. We have a capacity to take over and do things manually, as the Customs officers on the primary line have been doing in the past, and we can do that quite easily. You cannot say that any system is totally foolproof. If there were an outage of the system of some sort, Customs would have no trouble in manually processing people. It might not be as quick, but it would still do the job and border integrity would remain.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

I just want to thank the minister for the answers to those questions. I am sure we will continue to pursue how the technology goes during estimates and through other processes.

Bill agreed to.

Bills reported without amendment; report adopted.