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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This bill seeks to amend the Migration Act 1958 to enable the
minister, through legislative instrument, to specify groups of visa applicants
who are required to provide one or more
personal identifiers to make a valid
visa application
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Portfolio
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Home Affairs
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Introduced
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House of Representatives, 29 November 2018
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Rights
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Privacy; equality and non-discrimination; rights of children
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Previous report
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Report 1 of 2019
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Status
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Concluded examination
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2.111 The committee first reported on the bill in its Report 1 of 2019, and requested a response from the minister by 4 March 2019.[1]
2.112 The minister's response to the committee's inquiries was received on 8 March 2019. The response is discussed below and is available in full on the committee's website.[2]
2.113 Section 46(2B) of the bill proposes to enable the minister to determine, by legislative instrument, classes of persons who must provide one or more specified types of 'personal identifiers'[3] in one or more specified ways,[4] as a prerequisite to making a valid visa application. If an applicant in this specific class refuses to provide the required personal identifiers, they cannot make a valid visa application.[5]
2.114 The right to privacy includes respect for informational privacy, including the right to respect for private information and private life, particularly the storing, use and sharing of personal information.[6] The right to privacy may be subject to permissible limitations which are provided by law and are not arbitrary. In order for limitations not to be arbitrary, they must seek to achieve a legitimate objective and be reasonable, necessary and proportionate to achieving that objective.
2.115 The initial analysis noted that the measure engages and limits the right to privacy by authorising the collection of personal information about specified classes of people.[7]
2.116 The statement of compatibility indicates that the power to designate classes of people who must provide additional specified identifiers is likely to pursue a legitimate objective and be rationally connected to that objective. However, the committee raised questions as to whether the measure constituted a proportionate limitation on the right to privacy. In particular, the committee raised questions as to whether the measure was sufficiently circumscribed. This is because the breadth of the power in proposed section 46(2B), including the absence of any specific limits on the exercise of the power, raised concerns that the power may be exercised in a manner that is not compatible with human rights. In this regard, the initial analysis noted that the compatibility of the measure with the right to privacy will turn on the content of the instrument and how the power is applied in practice. Concerns were also raised regarding the adequacy and inclusion of safeguards.
2.117 The full initial human rights analysis is set out at Report 1 of 2019 (12 February 2019) pp. 40-42.[8]
2.118 The committee therefore sought the advice of the minister as to whether the limitations on the right to privacy contained in the Migration Amendment (Streamlining Visa Processing) Bill 2018 are proportionate to the stated objective, including:
• whether the power to determine, by legislative instrument, classes of persons who must provide one or more specified types of 'personal identifiers' in one or more specified ways is sufficiently circumscribed and accompanied by adequate safeguards;
• whether there exists a detailed outline of the proposed instrument insofar as it relates to the right to privacy;
• whether adequate safeguards are in place for individuals incapable of understanding and consenting to the collection of personal identifiers; and
• any other matters relevant to the adequacy of the safeguards in relation to the collection, use, disclosure and retention of personal identifiers.
2.119 The minister's response focuses on the safeguards relating to the collection of personal identifiers, and explains that the purpose of the bill is not to expand or impact the nature or type of personal identifiers that can be required or amend the purposes for which they can be collected. In this regard, the response provides detailed information about the extent of applicable safeguards in addition to the Australian Privacy Principles (APPs) and the Privacy Act 1988, including the legislative restrictions on the collection, use and disclosure of personal identifiers under Part 4A of the Migration Act 1958 and requirements under Part 3 of the Migration Regulations 1994 to notify a person in advance of relevant matters before the collection of personal identifiers that relate to them. The response explains that these legislative safeguards would apply to any instruments made under proposed section 46(2B) to specify classes of persons and categories of personal identifiers. These are important safeguards that are relevant to the proportionality of the measure, in particular in relation to how the measure applies to persons who may be incapable of understanding and consenting to the collection of personal identifiers (discussed further below in relation to the rights of the child).
2.120 However, the minister's response does not fully address the concern raised in the initial analysis that the power under proposed section 46(2B) may be overly broad with respect to its stated objective. As noted in the initial analysis, there do not appear to be any specific limits on the exercise of the power of the minister to specify classes of persons who must provide 'personal identifiers' in one or more specified ways. While the minister's response explains the limitations on the collection of information under the Migration Act (including relating to the type of information that can be collected and the manner in which it can be collected) that would apply to the exercise of the minister's power under proposed section 46(2B),[9] the power to declare classes of persons remains unconstrained. Although the minister's response indicates, in relation to compatibility with the right to equality and non-discrimination, that determinations will be based on objective assessment of operational priorities, intelligence, and identifiable risks of fraud, the bill does not appear to require this. Noting the broad circumstances in which the minister could potentially exercise this discretion (e.g. with reference to particular circumstances, by prescribing a particular manner in which personal identifiers must be provided),[10] the minister's response does not address how the power is sufficiently circumscribed to the stated objective of the measure.
2.121 It is acknowledged that it may be a relevant safeguard that determinations are legislative instruments and so will be subject to further scrutiny by the committee and parliament. However, it is noted that the minister's response states any such instrument will be non-disallowable. Given such instruments will not be subject to disallowance (a procedure which would have the effect of repealing the instrument), this restricts the role of parliament as an effective safeguard in relation to the minister's power. Noting the potentially significant human rights implications of any such instrument, while a statement of compatibility would not be required for such an instrument,[11] the committee has previously noted that it is good practice for measures that engage human rights to provide an assessment of human rights compatibility. In this respect, it is noted that the committee is still required to examine a non-disallowable instrument for human rights compatibility.
2.122 In any event, the prohibition of arbitrary interference with an individual's privacy requires that any interference with privacy be reasonable in the particular circumstances. While any instrument made by the minister may be capable of providing sufficient safeguards to protect the right to privacy, in the absence of further information as to the proposed content of the instrument, it is difficult to conclude that the safeguards available under the Migration Act relating to collection of personal identifiers would operate as a sufficient safeguard to constrain the minister's broad power. Concerns therefore remain that the broad nature of the power does not appear to be sufficiently circumscribed to ensure that the exercise of the power will, in all circumstances, be compatible with the right to privacy.
2.123 The committee thanks the minister for his response and has concluded its examination of this issue.
2.124 The preceding analysis indicates that, noting the broad scope of the proposed power under section 46(2B), there may be human rights concerns in relation to its operation. This is because its scope is such that it could be used in ways that may risk being incompatible with the right to privacy. However, setting out criteria for the exercise of this power by legislative instrument may be capable of addressing some of these concerns. If the bill is passed, the committee will consider the human rights implications of the legislative instrument once it is received.
2.125 The right to equality and non-discrimination is protected by articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR). 'Discrimination' under the ICCPR encompasses a distinction based on a personal attribute (for example, race, sex or on the basis of disability),[12] which has either the purpose (called 'direct' discrimination), or the effect (called 'indirect' discrimination), of adversely affecting human rights.[13]
2.126 Differential treatment[14] will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is effective to achieve that legitimate objective and is a proportionate means of achieving that objective.
2.127 The initial analysis raised concerns that while the statement of compatibility acknowledged that the measure may engage the right to equality and non-discrimination as it differentiates between citizens and non-citizens in order to regulate non-citizens coming into Australia,[15] it did not acknowledge that the right may also be engaged by the determination of 'classes of visa applicants'. The initial analysis noted that it is unclear whether these classes could lead to distinctions based on protected attributes (such as, race, sex, religion or national origin) which could amount to direct discrimination. Additionally, the determination of 'classes of visa applicants' may also have a disproportionate negative effect on particular groups based on national origin, race or religion and therefore be potentially indirectly discriminatory. Where a measure impacts on particular groups disproportionately, it establishes prima facie that there may be indirect discrimination.
2.128 While differential treatment will not constitute unlawful discrimination in certain circumstances, the risk, noting the broad scope of the power, of 'targeting' or profiling of classes of visa applicants without adequate justification, raises concerns that the measure may not be a proportionate means of achieving the objective.
2.129 The full initial human rights analysis is set out at Report 1 of 2019 (12 February 2019) pp. 42-44.[16]
2.130 The committee therefore sought the advice of the minister as to the compatibility of the measure with the right to equality and non-discrimination, in particular:
• whether the measure is a proportionate means of achieving the stated objective (including whether there are other, less rights restrictive, measures reasonably available); and
• whether there are any safeguards in place to ensure that the determination of 'classes of persons' is based on reasonable and objective criteria.
2.131 The minister's response appears to consider that the determination of particular visa classes could, in practice, coincide with personal attributes such as nationality:
... decisions on which cohorts will be included in the instrument (i.e. to which classes of visa applicants the new provisions will apply) will be determined on an objective basis, namely, in line with operational priorities, intelligence, identifiable fraud risks and other factors informed by objective information such as the Department's collection and analysis of statistics and intelligence information. Whilst the determination of classes of visa applicants may coincide with certain characteristics like national origin, the characteristic itself is not the basis of the determination but rather the risk from that cohort of people which has been identified through analysis of statistical and intelligence information.
Further, given the measures will specifically target classes of visa applicants where objective information has identified emerging fraud or national security risks (rather than all categories of visa applicants) it would be a proportionate measure in the sense that it addresses the risk specifically arising from that class of visa applicant.
2.132 As noted earlier in relation to the right to privacy, while the minister's response explains that any determination would be based on an objective basis in line with operational priorities, intelligence, identifiable fraud risks and other factors informed by objective information, there is no specific requirement for the minister to consider such factors when exercising their power under proposed section 46(2B). It is also noted that while the minister's response emphasises that any determination would not specifically target applicants on the basis of national origin (and therefore to that extent may not be directly discriminatory), this does not address the committee's concern that the determination of 'classes of visa applicants' may have a disproportionate negative effect on particular groups based on national origin, race, or religion and therefore be potentially indirectly discriminatory. The absence of objective criteria that restrict the potential for arbitrary exercise of the power, including the possibility of direct or indirect discrimination, mean that the compatibility of the measure will turn on the content of determinations and how that instrument-making power is exercised in practice. However, as discussed above in relation to privacy, the broad nature of the power is such that there is a risk it may be exercised in a manner incompatible with the right to equality and non-discrimination.
2.133 The committee thanks the minister for his response and has concluded its examination of this issue.
2.134 The preceding analysis indicates that, noting the broad scope of the proposed power under section 46(2B), there may be human rights concerns in relation to its operation. This is because its scope is such that it could be used in ways that may risk being incompatible with the right to equality and non-discrimination. However, setting out criteria for the exercise of this power by legislative instrument may be capable of addressing some of these concerns. If the bill is passed, the committee will consider the human rights implications of the legislative instrument once it is received.
2.135 Children have special rights under human rights law taking into account their particular vulnerabilities. The Convention on the Rights of the Child (CRC) in particular guarantees the rights of the child, including the right to protection from harmful influences, abuse and exploitation and the obligation to consider the best interests of the child as a primary consideration. In addition, the CRC prevents arbitrary or unlawful interferences with the privacy of a child.[17]
2.136 To the extent that a child may be within a class of persons specified by the minister,[18] the bill engages and limits the rights of the child by providing for the potential collection of personal identifiers. The initial analysis noted that the stated objective of preventing the trafficking of children is a legitimate objective for the purposes of international human rights law, and the collection of personal identifiers is likely rationally connected to that objective.
2.137 However, the initial analysis raised questions as to the proportionality of the limitation on the right to privacy. The initial analysis noted that the collection, use, disclosure and retention of biometric information from children as young as 5 years of age is a serious intrusion into the privacy of a child. This raises specific concerns that collection of such information may not be the least rights restrictive approach to achieving the stated objective. Further, the initial analysis noted that it was unclear whether there were adequate safeguards in place as the bill does not appear to set any limits on the exercise of the instrument-making power in proposed section 46(2B). The initial analysis noted that much will depend on the content of the rules made under section 46(2B) and how the power is applied in practice
2.138 The full initial human rights analysis is set out at Report 1 of 2019 (12 February 2019) pp. 44-45.[19]
2.139 The committee therefore sought the advice of the minister as to the compatibility of the measure with the rights of the child, specifically whether the measure is compatible with the obligation to consider the best interests of the child and the child's right to privacy (including whether the limitation is proportionate given the broad nature of the discretionary power and whether adequate and effective safeguards exist).
2.140 In relation to the proportionality of the measure, including whether the measure is subject to adequate safeguards so as to be compatible with the rights of children, the minister's response refers to the information provided in relation to the compatibility of the measure with the right to privacy.
2.141 Relevant to proportionality in the context of children, the minister's response provides some information about the availability of safeguards for people who may be incapable of understanding and consenting to the collection of personal identifiers.
The amendments will potentially require individuals incapable of understanding and consenting to the collection of personal identifiers, including children, to provide personal identifiers, should they be specified in the legislative instrument.
In practice, individuals incapable of understanding and consenting to the collection of personal identifiers are also incapable of making a visa application themselves. Instead, these people have a visa application made on their behalf by their legal guardian. The legal guardian will also need to make arrangements for the incapable persons' personal identifiers to be collected, usually when the legal guardian provides their personal identifiers. Hence, it is the legal guardian of a person incapable of understanding and consenting to the collection of personal identifiers, who will understand the information provided prior to collection of personal identifiers (including how personal identifiers are obtained from minors and incapable persons), who gives consent of the incapable person.
2.142 It is also a relevant safeguard under the Migration Regulations 1994 that, before personal identifiers are collected, an affected person must be informed of certain matters. The person must be given enough time to read and understand those matters,[20] which include:
• the reason why a personal identifier is to be provided;
• how the personal identifier may be collected and used;
• notification that a personal identifier may be produced in evidence in a court or tribunal in relation to the person who provided the personal identifier;
• notification that the Privacy Act 1988 applies to a personal identifier;
• that the person has a right to make a complaint to the Australian Information Commissioner about the handling of personal information; and
• if the person is a minor or incapable person - information concerning how a personal identifier is to be obtained from a minor or incapable person.
Further Regulation 3.20 provides that if a form is given to a person of the above information in compliance with section 2588(3), it must be given to the person at a time that gives the person enough time to read and understand the form before the identification test is conducted.
2.143 In this regard, it is significant that children who may be incapable of understanding and consenting to the provision of personal identifiers will, in practice, be unable to apply for a visa and so will be supported by a legal guardian.
2.144 Noting the above reasoning, it appears that there are a number of legislative and operational safeguards to protect the rights of children. However, in view of the minister's unrestricted discretion to specify classes of people and the manner in which they must provider personal identifiers (discussed above in relation to the right to privacy), it is not possible to conclude that the measure will, in all circumstances, result in outcomes that are sufficiently circumscribed to the stated objective of the measure so as to be compatible with the rights of children.
2.145 The committee thanks the minister for his response and has concluded its examination of this issue.
2.146 The committee considers that while there are certain safeguards relevant to the rights of children, the measure, as drafted, may not be sufficiently circumscribed and there are risks that the minister's broad power may be exercised in a manner incompatible with human rights. However, setting out criteria for the exercise of this power by legislative instrument may be capable of addressing some of these concerns. If the bill is passed, the committee will consider the human rights implications of the legislative instrument once it is received.
[1] Parliamentary Joint Committee on Human Rights, Report 1 of 2019 (12 February 2019) pp. 39-45.
[2] The minister's response is available in full on the committee's scrutiny reports page: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[3] Section 5A of the Migration Act: 'personal identifier' means any of the following: (a) fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies); (b) a measurement of a person's height and weight; (c) a photograph or other image of a person's face and shoulders; (d) an audio or a video recording of a person (other than a video recording under section 261AJ); (e) an iris scan; (f) a person's signature; (g) any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914 .
[4] Proposed subsection 46(2B) of the bill.
[5] Statement of compatibility (SOC), p. 11.
[6] International Covenant on Civil and Political Rights (ICCPR), article 17.
[7] Parliamentary Joint Committee on Human Rights, Report 1 of 2019 (12 February 2019) pp. 40-40 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2019/Report_1_of_2019.
[8] Parliamentary Joint Committee on Human Rights, Report 1 of 2019 (12 February 2019) pp. 40-42 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2019/Report_1_of_2019.
[9] See generally Part 4A of the Migration Act 1958.
[10] Proposed section 46(2C).
[11] Under section 5 of the Human Rights (Parliamentary Scrutiny) Act 2011, instruments exempt from disallowance are not required to be accompanied by a statement of compatibility. The committee nevertheless scrutinises exempt instruments because section 7 of the same Act requires it to examine all instruments for compatibility with human rights.
[12] The prohibited grounds are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation: UN Human Rights Committee, General Comment 18: Non-discrimination (1989).
[13] UN Human Rights Committee, General Comment 18: Non-discrimination (1989).
[14] See, for example, Althammer v Austria, Human Rights Committee Communication no. 998/01 [10.2].
[15] SOC, p. 15.
[16] Parliamentary Joint Committee on Human Rights, Report 1 of 2019 (12 February 2019) pp. 42-44 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2019/Report_1_of_2019.
[17] Convention on the Rights of the Child, article 16.
[18] Under proposed section 46(2B).
[19] Parliamentary Joint Committee on Human Rights, Report 1 of 2019 (12 February 2019) pp. 44-45 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2019/Report_1_of_2019.
[20] See Migration Act 1958, section 258B(3) and Migration Regulations 1994, item 3.20.
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