1.1
The Australian Greens draw attention to the committee report's statement
that 'the majority of the submitters supported the bill in its current form'.
There were four submissions made to this inquiry. One submission supporting the
bill was from the sponsoring Minister's own department, the Department of Home
Affairs (Submission 4). Two submissions supporting the bill were written
in less than half a page (Submissions 1 and 2). One submission raised several
and significant concerns with the bill (Submission 3).
1.2
Regarding justification of the bill, the Law Council of Australia
(Submission 3) argued that the collection of additional personal
identifiers as a prerequisite to making valid visa applications (in certain
instances) has no clear link to the bill's stated objectives of preventing
terrorism. As such, the Law Council called on the Government for greater
clarity on:
...how personal identifiers are to be used in the visa
processing framework and the extent to which applicants will be informed of
these processes and have an adequate opportunity to respond.[1]
1.3
As noted in the committee's report, the Parliamentary Joint Committee on
Human Rights (PJCHR) has also previously raised concerns regarding the
collection of additional personal identifiers under the Migration Act 1958,
particularly regarding privacy safeguards and 'how the proposed measure would
apply to persons "who may be incapable of understanding and consenting to
the collection of personal identifiers", such as children'.[2]
1.4
This latter concern, regarding consent, is shared by the Australian
Greens, who question whether consent for all people subjected to this
legislation could be considered fully informed—where socio-economic
determinants such as language, education, age, culture, and/or location could
be compromising factors—and whether consent could in certain circumstances be
considered to be given under duress, for example, for persons fleeing
persecution.
1.5
Furthermore, reported by the PJCHR, the proposed collection of additional
personal identifiers 'could lead to distinctions based on protected attributes
(such as, race, sex, religion or national origin) which could amount to direct
discrimination'.[3]
1.6
On these concerns regarding consent and discrimination, as noted in the committee's
report, but bearing reiteration in this dissenting report: 'At the time of this
committee's adoption of this report, the Minister had not yet provided a
response'.
1.7
As submitted by the Law Council of Australia, further discrimination
against vulnerable peoples that could result from additional personal
identifiers being required at the time of visa application, as opposed to
post-lodgement (for which there is already capacity within current
legislation), could include 'legitimate and worthy visa applicants being denied
the opportunity to lodge a valid visa application due to no fault of their own'.[4]
1.8
In May 2018, the Senate passed a Greens motion calling on the Government
to strengthen protections in Australia's 'woefully inadequate' Privacy Act
1988, to provide protections comparable with the European Union's General
Data Protection Regulation (GDPR). However, this bill, if considered within the
GDPR, would likely fail the following tests:
- processing is permitted if it is necessary for
the purposes of legitimate interests pursued by the controller (or by a third
party), except where the controller's interests are overridden by the
interests, fundamental rights or freedoms of the affected data subjects which
require protection, particularly where the data subject is a child (Article 6);
and
- if informed consent is used as the lawful basis
for processing, consent must have been explicit for data collected and each
purpose data is used for (Article 7).
1.9
Another significant concern for the Australian Greens regarding this
bill is its use of a non-disallowable legislative instrument to determine
specified collection of specified personal identifiers for specified classes of
visa applicants.
1.10
This concern was also held by the Senate Scrutiny of Bills Committee and
the Law Council of Australia, with the latter submitting:
...without adequate parliamentary oversight and consultation
requirements, determinations made under the proposed reforms as to applicant
classes, the types of personal identifiers or the manner in which those
identifiers are provided, may cast doubt over the non-discriminatory nature of
Australia's migration programme.[5]
Recommendation 1
1.11
The Australian Greens recommend that the bill not be passed.
Senator Nick McKim
Senator for Tasmania
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