Home Affairs Legislation Amendment (2025 Measures No. 2) Bill 2025
Ms CLUTTERHAM (Sturt) (17:27): I rise today to speak on the Home Affairs Legislation Amendment (2025 Measures No. 2) Bill 2025. There are two key purposes to this bill. Firstly, it amends the Migration Act of 1958 to clarify and modernise provisions of that act to enable the Department of Home Affairs, including the Australian Border Force, to collect from persons, under the legislation, facial images that align and are consistent with international standards and current biometric technologies.
It also establishes the validation of facial images that were provided by a person or collected by the department prior to the commencement of the amendments. Secondly, the bill amends the Australian Citizenship Act to address certain residency barriers to Australian citizenship for persons engaging in activities of benefit to Australia and who may be required to spend significant periods of time overseas in association with their chosen activity.
To the first purpose of the bill, the collection of biometric facial images, the collection of this data is critical to assist the department in its endeavours to mitigate identity fraud, to enhance community safety and to promote national security. The collection of this information can lead to the identification of persons who have committed serious offences in Australia or overseas.
It also allows the department to identify individuals who have previously been refused a visa or right of entry, placed in immigration detention or deported from Australia. It can also act as a deterrent—if you know your biometric facial data is being collected, this may dissuade you from taking a particular course of action which you may have taken if no data collection of this nature were taking place.
Further, the prevention of identity fraud in the application process for visas and citizenship is also assisted, and, critically, the risks of human trafficking are mitigated. Trade and tourism also benefit because efficient and secure immigration clearance at Australia's borders is also enhanced by the collection of biometric facial data. In Australian airports we use SmartGates, which employ biometric facial images to automate immigration clearance at our major international airports.
We encourage tourism to our country, but more tourism means more tourists—more people to manage. Currently, approximately 70 per cent of travellers are cleared during the immigration process by SmartGates. This supports the Australian Border Force to manage increasing numbers of travellers entering Australia without the need for significant increases in officers.
Further, the security benefits and efficiency of biometric facial images enable Border Force to focus the efforts of its officers on identifying persons of interest, protecting the Australian community and enabling legitimate travel and trade. Consistent with international standards and current technology, an image of the person's face is collected in a quick and non-intrusive way.
The person's face must be clearly visible for the facial image to be taken, and the person may be asked to remove hats, scarfs, sunglasses, tinted spectacles or any other item that obscures the face, with the exception of religious head coverings. This is consistent with international practice and is the least intrusive way to efficiently and securely process the large numbers of visa and citizenship applications the department receives or to efficiently facilitate travel across Australia's borders.
In terms of the amendments themselves, schedule 1 to the bill contains amendments to the Australian Citizenship Act and Migration Act to clarify and modernise the provisions in those acts that relate to the collection of biometric facial images by the department. The definition of facial images in both acts will be updated in order to support and provide express authority for the department to collect and verify those images in line with international standards and current technology.
Schedule 1 will also validate any past collection of biometric facial images by the department under the Migration Act or Australian Citizenship Act so that there are no penalties or disadvantages to any person who has previously provided an image to the minister or the department or presented to an authorised system. Schedule 2 to the bill contains amendments to the Australian Citizenship Act to address residency barriers to Australian citizenship for persons who are engaging in an activity of benefit to Australia and who are seeking to become an Australian citizen but whose overseas absences relating to this activity impact their ability to meet the current general, special or alternative residence requirements.
These amendments will provide the minister with the discretion under the minister's personal power to determine that an applicant for Australian citizenship meets that special residency requirement under section 22A of the Australian Citizenship Act without needing to be satisfied they have been present in Australia for at least 180 days during the period of two years immediately before the day they make their application.
It is important to state clearly that the amendments proposed by this bill are compatible with human rights. Data collection, facial recognition, biometric information and rights of movement—all of these things that are necessary for the protection and security of Australians and those who visit this country—sometimes create anxiety about privacy, movement and data retention.
The statement of human rights that accompanies the explanatory memorandum to this bill clearly sets out that these concerns have been considered and addressed in detail, and any suggestion that may be received to the contrary would not be correct. Schedule 1 of this bill engages with a number of human rights—specifically, article 17 of the International Covenant on Civil and Political Rights, which provides that an individual's privacy must not be interfered with unless there is a lawful basis.
In this regard, the United Nations Human Rights Committee has interpreted this to mean that any interference with privacy must be proportionate to the end being sought and be necessary in the circumstances. The Migration Act, which is affected by this bill, has as its object the regulation in the national interest for coming into and presence in Australia of noncitizens.
To ensure that objective is fulfilled, persons are required, whether citizens or noncitizens, to provide personal identifiers when entering Australia so that the Commonwealth government knows who is entering and who is departing this country. Under the Australian Citizenship Act, an applicant for citizenship can be requested in writing to provide one or more specified personal identifiers.
They may be collected for the purposes of the minister being satisfied of the identity of a person in relation to an application for citizenship. Appropriate safeguards on the collection of these personal identifiers are provided for through the Privacy Act 1988. Both the act and the accompanying Australian Privacy Principles impose mandatory requirements on the department's collection, use and disclosure of this personal information, including information in identity records.
Under the Privacy Act, the department must not collect personal information unless that information is reasonably necessary for or directly related to one or more of the department's functions or activities, and Australian privacy principle 3.4 authorises the department to collect that sensitive information. In all of these circumstances, facial images are captured directly from the individual in a manner that is proportionate to the objective of the acts and in a manner which affords reasonable levels of privacy.
Considering the gravity of the risks of not collecting the information and the importance to Australia of an orderly migration system, the continued collection of facial images is proportionate to the legitimate purposes of the acts and is compatible with article 17 of the ICCPR. The proposed amendments to the definition and references to facial images within both acts are aimed at further enhancing the accuracy and utility of identity verification, which directly supports the safety of the Australian community and the integrity of our migration system.
The bill also engages with the right to physical integrity and freedom from cruel, inhuman or degrading treatment covered by article 7 of the ICCPR. Facial image capture is performed in circumstances where there is the unnecessary presence of a person or where visual inspection is limited or absent and is captured in a non-intrusive manner in accordance with international standards.
This again is to facilitate the efficient movement of travel across Australia's border and to verify the identity of persons applying for visas or citizenship. For the schedule 1 amendments, to the extent that articles 7 and 17 of the ICCPR are engaged by them, interference with these rights is not arbitrary but reasonable and necessary to ensure that there is the capacity to verify identities through facial images.
Given the significant potential impact that individuals with unverified identities entering Australia could have on the economic and social fabric of this country and its national security and community safety, the amendments are reasonable, necessary and proportionate. Schedule 2 of this bill engages with the right to freedom of movement under article 12 of the International Covenant on Civil and Political Rights and the right to equality and non-discrimination under article 26 of the ICCPR.
The proposed removal of the residency requirement that a person must be physically present in Australia for at least 180 days in the two-year period prior to applying for citizenship is intended as a positive measure that will benefit certain applicants who engage in activities which contribute to Australia's national interests. This measure seeks to address the gap identified in some cases where, for example, increased training requirements associated with certain sporting endeavours may mean a person cannot meet the residency requirements for citizenship.
This results in a situation where the reason for that person's consideration for the special residence requirement is the reason they cannot meet it. While the current provisions limit the right to freedom of movement for those applicants, the proposed measure will provide flexibility for the minister to exercise a discretion regarding time spent in the country.
The removal of residency barriers to citizenship promotes the right to freedom of movement for the applicants who seek to become Australian citizens to engage in activities that are beneficial for Australia. The removal of this residency barrier recognises the ongoing nature of the athlete's training and competition schedules overseas, which may continue after citizenship.
The amendments promote the right to freedom of movement for those applicants. With respect to the right to equality and non-discrimination covered by article 26 of the ICCPR, the proposed amendments may provide for differential treatment between applicants for citizenship in circumstances where the minister is satisfied that an applicant is seeking to engage in a specified activity that would benefit Australia.
The kinds of activities considered beneficial are specified by legislative instrument and are currently limited to those who require a high-level clearance to work with the Commonwealth and athletes competing in certain sporting events. The amendments which would affect a very small number of applicants positively discriminate in favour of those applicants on the basis of their other status but do not discriminate against persons to be able to obtain citizenship under existing measures.
Because these amendments also promote the human rights of individuals, they are compatible with human rights. I commend this bill to the House. Question agreed to.
Bill read a second time. Ordered that this bill be reported to the House without amendment.