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2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION AMENDMENT (STRENGTHENING BIOMETRICS INTEGRITY)
BILL 2015
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendment and New Clause to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Immigration and Border
Protection,
the Hon. Peter Dutton MP)
Amendment to the Migration Amendment (Strengthening Biometrics Integrity)
Bill 2015
OUTLINE
The Migration Amendment (Strengthening Biometrics Integrity) Bill 2015 (the
Bill) amends the Migration Act 1958 (Migration Act) to implement a number
of reforms which will consolidate and simplify the provisions relating to
the collection of personal identifiers, and will address gaps and
shortcomings that exist in the current legislative framework.
The Bill was referred to the Senate Legal and Constitutional Affairs
Legislation Committee (the Committee) on 16 April 2015 for inquiry and
report. The Committee reported on the Bill on 5 June 2015.
Relevantly, Recommendation 1 of the Committee report was:
Recommendation 1
The Committee recommends that consideration be given to ensuring that
protections in line with those found in sections 258E and 258F of the
Migration Act 1958 apply to any means of collecting personal identifiers
under proposed new paragraph 257A(5)(b) of the Bill.
Recommendation 1 relates to Schedule 1 of the Bill which introduces a broad
power for the collection of personal identifiers that is to replace seven
existing circumstance specific personal identifier collection provisions.
Schedule 1 inserts new subsection 257A(1) into the Migration Act which
provides that the Minister or an officer may, in writing or orally, require
a person to provide one or more personal identifiers for the purposes of
the Migration Act or the Migration Regulations 1994. New subsection 257A(5)
provides that if a person is required to provide one or more personal
identifiers under subsection 257A(1), those personal identifiers must be
provided by way of one or more identification tests carried out by an
authorised officer or an authorised system, or if another way is specified
by the Minister or officer - provided in that specified way.
In line with the recommendation of the Committee, section 285F of the
Migration Act will be amended to extend the safeguard in that section to
any means of collecting personal identifiers under new paragraph 257A(5)(b)
inserted by Schedule 1 of the Bill.
In summary, the amendments to Schedule 1 to the Bill will:
. provide that nothing in the Migration Act authorises the Minister or
an officer to require a person to provide a personal identifier under
section 257A in a cruel, inhuman or degrading way, or in a way that
fails to treat the person with humanity and with respect for human
dignity.
FINANCIAL IMPACT STATEMENT
The Financial impact of the Bill is low. Any costs will be met from within
existing resources of the Department of Immigration and Border Protection.
AMENDMENT TO THE MIGRATION AMENDMENT (STRENGTHENING BIOMETRICS INTEGRITY)
BILL 2015
NOTES ON AMENDMENT
Amendment (1) - Schedule 1, item 45, page 9 (lines 13 to 15)
This amendment omits item 45 from Schedule 1 to the Bill and substitutes a
new item 45.
Current item 45 of Schedule 1 to the Bill amends section 258F of the Act to
omit the words "section 40, 46, 166, 170, 175, 188 or 192" and replaces
them with the words "section 257A". The current item is a consequential
amendment to item 34 of Schedule 1 to the Bill.
Amended item 45 of Schedule 1 to the Bill will repeal current section 258F
of the Migration Act and insert new section 258F "Person must not be
required to provide personal identifiers in a cruel, inhuman or degrading
way etc".
Current section 258F of the Migration Act provides that the carrying out of
an identification test, for the purposes of the Migration Act, is not of
itself taken to be: cruel, inhuman or degrading; or to be a failure to
treat a person with humanity and with respect for human dignity. The
section also makes it clear that nothing in the Act itself authorises the
carrying out of an identification test in a cruel, inhuman or degrading
manner, or in a manner that fails to treat a person with humanity and with
respect for human dignity.
Amended item 45 of Schedule 1 to the Bill will insert a new section 258F
that provides that for the purposes of the Migration Act, a requirement to
provide a personal identifier, or the provision of a personal identifier,
in a particular way under section 257A is not of itself taken to be: cruel,
inhuman or degrading; or a failure to treat a person with humanity and with
respect for human dignity. Amended item 45 of Schedule 1 to the Bill will
also provide that nothing in the Migration Act authorises the Minister or
an officer to require a person to provide a personal identifier under
section 257A in a cruel, inhuman or degrading way, or in a way that fails
to treat the person with humanity and with respect for human dignity.
The purpose of new section 258F is to make it clear that the Migration Act
does not authorise the Minister or an officer to require a person to
provide a personal identifier under either limb of new subsection 257A(5)
in a way that is cruel, inhuman or degrading, or in a way that fails to
treat a person with humanity and with respect for human dignity. That is,
whether the person has been required to provide a personal identifier by
way of an identification test carried out by an authorised officer or an
authorised system, or by another specified way, in either case the
Migration Act does not authorise the Minister or an officer to do so in a
cruel, inhuman or degrading way, or in a way that fails to treat the person
with humanity and respect for human dignity.
New section 258F will also provide that the act of the Minister or an
officer issuing a requirement to provide a personal identifier in a
particular way, as well as the act of the person providing a personal
identifier in a particular way, are not themselves taken to be cruel,
inhuman or degrading, or a failure to treat the person with humanity and
with respect for human dignity.
This amendment implements Recommendation 1 of the Committee report relating
to the safeguards in section 285F of the Migration Act and extends those
safeguards to any means of collecting personal identifiers under proposed
new paragraph 257A(5)(b) of the Bill.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011
Amendment to the
Migration Amendment (Strengthening Biometrics Integrity) Bill 2015
The amendment to this Bill is compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3
of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of amendments to the Bill
This Statement of Compatibility with Human Rights relates to an amendment
to the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015
(the Bill) only, and is therefore supplementary to, and to be read in
conjunction with, the original Statement of Compatibility with Human
Rights, tabled with the Bill. Specifically, amendments to the Bill will
amend the Migration Act 1958 (the Migration Act) to:
. Extend the protection in section 258F of the Migration Act to a
requirement to provide a personal identifier, or the provision of a
personal identifier, in a particular way under section 257A.
This amendment to the Bill implements Recommendation 1 of the Senate Legal
and Constitutional Affairs Legislation Committee (the Committee), as stated
in their report of 5 June 2015 regarding the Bill. Recommendation 1
provides that consideration be given to ensuring that protections in line
with those found in section 258E and 258F of the Migration Act apply to any
means of collecting personal identifiers under proposed new paragraph
257A(5)(b) of the Bill.
Human rights implications
Schedule 1: amendment to section 258F of the Migration Act
Current section 258F provides that nothing in the Migration Act authorises
the carrying out of an identification test in a cruel, inhuman or degrading
manner, or in a manner that fails to treat a person with humanity and with
respect for human dignity. It also provides that the carrying out of an
identification test is not of itself taken to be cruel, inhuman or
degrading, or a failure to treat a person with humanity and respect for
human dignity.
This amendment will likewise make it clear that nothing in the Migration
Act authorises the Minister or an officer to require a person to provide a
personal identifier under section 257A in a cruel, inhuman or degrading
way, or in a way that fails to treat the person with humanity and with
respect for human dignity. The amendment will also provide that a
requirement to provide a personal identifier, or the provision of a
personal identifier, in a particular way under section 257A is not of
itself taken to be cruel, inhuman or degrading, or a failure to treat a
person with humanity and with respect for human dignity.
This amendment engages the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (the CAT) in that it complies
with Article 16 of the CAT in preventing acts of cruel, inhuman or
degrading treatment which do not amount to torture under the CAT, when an
individual provides one or more personal identifiers under section 257A.
The amendment also engages the International Covenant on Civil and
Political Rights (ICCPR). Article 7 of the ICCPR relevantly provides that
no one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. The proposed amendment to section 258F will affirm
an individual's right to physical integrity and freedom from cruel, inhuman
or degrading treatment.
Conclusion
The amendment to the Bill is compatible with human rights.
The Hon. Peter Dutton MP, Minister for Immigration and Border Protection
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