Migration Amendment (Strengthening Biometrics Integrity) Bill 2015 Bills

I rise to make some comments on the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015.

This bill does a number of things. Particularly, it simplifies the provisions relating to the collection of personal identifiers. At the moment there are a number of provisions in the bills, which means that officers who are enacting this legislation need to refer to a number of heads of power and there are multiple regulations which they apply. Particularly, it will also expand the existing personal identifier collection capability and provide for new capabilities, which will increase the integrity of identity security law enforcement and immigration checks of people seeking to enter and to depart Australia, and of non-citizens who remain in Australia. These measures will serve to strengthen the integrity of Australia’s borders and our migration program.

Specifically, the amendments to the Migration Act do a number of things. The explanatory memorandum says that they:

streamline seven existing personal identifier collection powers into a broad, discretionary power to collect one or more personal identifiers from non-citizens, and citizens at the border, for the purposes of the Migration Act and the Migration Regulations 1994 (Migration Regulations);

provide flexibility on the types of personal identifiers (as defined in the existing legislation)—

So, not actually expanding that—

that may be required, the circumstances in which they may be collected, and the places where they may be collected;

enable personal identifiers to be provided either by way of an identification test, or by another way specified by the minister or officer (such as a live scan of fingerprints on a handheld device);

enable personal identifiers to be required by the minister or an officer, either orally, in writing, or through an automated system, and allow for existing deemed receipt provisions in the Migration Act to apply in relation to requests in writing;

enable personal identifiers to be collected from minors and incapable persons for the purposes of the Migration Act and Migration Regulations under the new broad power without the need to obtain the consent, or require the presence of a parent, guardian or independent person during the collection of personal identifiers; and

omit provisions which are unused and no longer necessary.

Before I go on to other details around the bill, I think it is important that we address the context of this bill.

One of the other committees—which in fact has been sitting today—that I am involved in is the Parliamentary Joint Committee on Intelligence and Security. We have been dealing over the last 12 months with a number of tranches of legislation looking at how we protect Australia and Australia’s interests. People listening to this debate may be aware of the foreign fighters bill, for example. We have looked at strengthening the tool set, if you like, that Australian law enforcement agencies have to apprehend and hold to account people who go to places like Mosul in the al-Raqqa province in Syria and participate in activities there with the Islamic State or Daesh and the activities they are undertaking.

We have looked at things like metadata and we have put in place a requirement for telecommunications providers to retain a prescribed set of data for two years. They will retain that data and make it available to the law enforcement agencies who need it. That is not only in the counterterrorism space; importantly that information is used in almost all serious crime, whether it is organised crime in terms of drugs or people-trafficking or the heinous crime of paedophilia and the abuse of children. So we have put in place metadata laws that provide for that.

This is another piece of legislation that is going towards addressing those issues. At the moment the committee is looking at citizenship laws and whether it is appropriate to revoke the citizenship of somebody who betrays their allegiance to Australia by virtue of their actions supporting terrorist organisations.

That committee is very active. In the last couple of weeks I have travelled with the committee—with the chair, the former Attorney-General Mr Philip Ruddock—to engage with a number of our international partners in the UK, France and the United States, to understand the extent of their measures to address the threat of foreign fighters, to understand their intent in terms of how the issues in Syria may be resolved, and also to understand how we can combat violent extremism.

One of the things that stood out very clearly, particularly when we spoke to people in France, was the benefit that Australia has in having secure borders. It is no surprise to me that the policies that this government has put in place have not only secured Australia’s borders in terms of illegal arrivals but have also been an important tool for the Federal Police, our security agencies and our border protection staff—to have an understanding of who arrives and who leaves this country. Those are quite important things when it comes to minimising the impact of Daesh; when it comes to minimising the very existence of the caliphate, which is drawing people from all around the world; and when it comes to protecting Australia from the return of people who have gone and received training in terrorist activities, such as the use of explosives and other weapons.

Particularly when we met with people in France—their intelligence agencies, their government and their oversight policymakers—it became apparent that one of the real issues that Europe has is that their borders are now essentially open for people to move from country to country, with very few checks. That imposes an incredible burden on them in terms of their ability to secure their nations. Australia has a fantastic history, particularly under the coalition, of securing our borders. We need to make sure we give our officials every tool they need to keep our borders secure.

The threat also is large in terms of the foreign fighters who are leaving our shores. One of the issues that become very apparent as you look into this conflict is that, while we have a natural concern about terrorist activity here in Australia—more broadly the conflict in Syria and Iraq, which is a very complex mix of issues between the Assad regime, the anti-Assad forces, the Islamic State and those proxies who would seek to support the Islamic State or support those who oppose it—the impact on the Syrian population is huge.

Putting our own immediate security aside—just looking at the humanitarian consequences of allowing foreign fighters to go and support the existence of Daesh or the caliphate or the Islamic State—we have around seven million Syrians who are displaced and currently living in Jordan, Turkey and Lebanon. We have nearly four million displaced internally within Syria, and about 3½ million people displaced internally within Iraq. That means that there are families living in incredibly dire circumstances; there are children who are receiving at best a basic education and at worst no education. The long-term risk is that not only will they be displaced for a long period but potentially they will become radicalised themselves and will present a threat to the stability of Iraq and Syria, and thereby to Europe and more broadly Australia

So we have a great incentive to ensure that we have measures in place that allow our authorities to secure our borders not only from people returning to or coming into Australia but particularly from those people who are leaving Australia to go and give succour and support to the caliphate which, by virtue of its very existence, is a magnet that causes people to become radicalised and to see this as an alternative to the established Westphalian nation-state that has dictated the world order and, in large measure, since World War II, despite a number of smaller conflicts, has provided stability to the world and the world order.

Providing these measures means that, for example, Khaled Sharrouf, who left Australia and went to fight with Daesh, would not have been able to leave on the strength of his brother’s passport. These measures would have meant that people at the border would have had biometric identifiers that would have said, ‘This is a person of concern, whose records are held by our law enforcement agencies.’ It would have enabled them to stop him leaving. We have seen the impacts on not only him personally but his extended family and other people, as well as the people in Syria, that have had dreadful consequences. We have seen reports of the treatment of Yazidi sex slaves, young women who have been bought, traded and sold and abused by Sharrouf, his associates and indeed his family—dreadful consequences that could have been prevented had we had measures in place where departing people are required to have a certain form of identification, that being biometrics.

These tools need to be seen in the context of our security situation as well as the humanitarian situation in the Middle East. We also need to see it in terms of our security here, with people returning. When people come back, it is important that we know whether they have been held on a database of concern by our law enforcement agencies or by security agencies in countries overseas. We need to ensure that when people they come through our checkpoints at airports we are able to positively identify those people so that we can hold them to account for the things they have done or appropriately regulate what they are allowed to do in Australia. Our own security, to a large extent, requires these changes.

Another area that is important, and this is one aspect of the bill, is changing the ability of our officials on borders to take biometric details from minors. That has caused some concern for people who were witnesses in the Senate inquiry into this bill, but what we see is the requirement to be able to positively identify children from a couple of aspects. One of the really disturbing aspects about this current conflict in the Middle East and the way that Daesh is operating is that we are seeing that the radicalisation is occurring at a younger and younger age. So we are getting children in their very early teens who have become radicalised and there is ample evidence that some of the suicide bombings that have been occurring in the Middle East are carried out by very young children.

I completely accept the fact—and we have heard a lot of this in the Parliamentary Joint Committee on Intelligence and Security as we are looking at the possibility of revocation of citizenship—that we need to look at children who are caught up in this as victims, as opposed to seeing them as perpetrators. But even if we see them as victims we need a method to identify who they are so that they can actually obtain the appropriate support to help them in some form of rehabilitation, recovery or reintegration into society. We need to prevent them while they go through that process from carrying out the things that may have been imparted upon them or, or if you like, the brainwashing that has been given to them, whether by a guardian or, in some cases, a parent or other people who have sought to influence these young people. So this measure should not be seen as a punitive measure against children. Based on the work we are doing with the intelligence and security committee, if they are victims, then this is a way we can identify that these are young people who have need of the state to intervene and to work with them.

One of the interesting things that came out of the discussions we had in the UK was the fact that they recognise that where a caregiver or a parent is either not preventing radicalisation or, in some cases, actually actively encouraging radicalisation or the conduct of events, that the state may actually need to intervene. We see there the fact that they will take a child into state care to remove them from those influences that are causing damage to the child and from the propensity for that child to be prepared to commit acts as a result of the violent extremism that they have been exposed to.

We should not see these border measures as a punitive measure; we should actually see them as a preventative measure, a way of identifying children who are in need of the protection of the Australian government and the state to not only protect our society but provide them the opportunity for, if you like, rescue and reintegration.

The other group that this bill will address is where there is trafficking, particularly inbound trafficking of people who may be trafficked into the sex trade here in Australia, or potentially of people who are being taken out of Australia for illegal purposes, whether that be for child marriage or for female genital mutilation. There are areas where at the moment we have watch lists for certain people, but this provides another tool. So if a child was travelling on false documents with the parent or the person who was facilitating that movement out of Australia for those illegal purposes, then people who are concerned about them, whether they be extended family or friends, have the potential to find a way for our law enforcement agencies to obtain fingerprints and to match those as they go through Immigration at our borders. So this becomes quite a powerful tool to actually not only prevent young people who are victims of practices that we do not support here in Australia leaving—in fact, in the life of this parliament have passed laws to make illegal some of the practices such as child marriage—but it also provides us with the ability, in cooperation with overseas powers and law enforcement agencies, to identify people who are being trafficked, to pick them up when they come into Australia, again, so that we can identify and hopefully prosecute those who are responsible but protect the people who are the victims of that trafficking.

There is a database of non-nationals from whom, whether they are applying for a visa or for other reasons, biometric data has been obtained by the government and it has been retained with all of the normal privacy requirements that the Australian government expects of its agencies and the public expects the government to maintain. But, importantly, the data of Australian citizens, if it is held, is held by law enforcement agencies. So an Australian citizen who has a criminal record will have data retained by, for example, the Australian Federal Police and that data is available to the officers at our borders. But information that is taken, for example, using the portable scanners, which are being proposed at the borders, will not be retained. That data will be recorded, matched and then it will be deleted. So people do not need to be concerned that the government is starting to accrue a large database that will be kept ad infinitum of Australian citizens. That data is either because the person has a criminal record or it is just recorded for matching and then it is deleted at the border.

We have also had some people question what will happen to the data of minors. We had Senator Lines asking whether or not the government knew what would happen to that data. There was a question on notice that she had asked and the answer was given. I had a look at the answer to that question on notice, which said that that data will be deleted when the child turns 18 if not sooner, so there may be circumstances whereby the data is reviewed and it is deleted. But in any case, as that person turns 18, that data will be deleted.

This amendment I strongly support because it is simplifying the regulations that officials operate under. It is streamlining the measures they need to use. It is giving them the tools to protect minors and vulnerable people, to stop people going overseas to fight and, importantly, to protect Australia.