Labor senators back stricter biometric data storage rules

Senators back changes to bill to mandate additional security measures for biometric data gathered by Immigration

Labor members of the Senate Standing Committees on Legal and Constitutional Affairs have called for changes to be made to a government bill that, if passed, will increase the powers of the immigration department to collect biometric identifiers.

The committee today released its report on the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015.

The bill will combine separate personal identifier collection powers into a broader discretionary power.

It will also offer flexibility on the types of biometric identifiers that can be collected under the auspices of the Migration Act, allowing through regulation the expansion of types that can be collected, the circumstances in which they are collected, and the places where they can be collected.

In addition it includes measures that will enable biometric identifiers to be collected from people, such as minors or disabled persons who are incapable of giving consent, without getting the consent of a parent, guardian or independent person.

The committee's report recommends that the bill be modified to introduce protections along the lines of those in the sections 258E and 258F of the Migration Act 1958, which include provisions protecting the dignity of the subject of an identification test and preventing cruel and degrading treatment.

The report also recommended that a Privacy Impact Assessment of the biometrics bill, which the department has said it is undertaking, be released prior to the Senate voting on the proposed legislation.

The third recommendation of the committee's report is that, subject to the other two recommendations, the bill be passed.

However a dissenting report by Labor senators Catryna Bilyk and Sue Lines countered that the bill should not be passed without significant amendments.

"We argue that the bill lacks genuine independent oversight, and that the retention of and arbitrary collection of biometric information raises concerns from collection, and then subsequent use and retention," the dissenting report states.

Their concerns include the level of security that will be afforded to the biometric data gathered under the revamped Migration Act.

"Labor Senators would support a thorough review by the Privacy Commissioner, prior to passage of the bill, as to whether the current obligations to store biometric data securely are sufficient or whether increased security for the dataset is required, and support the recommendation of the majority report that a separate Privacy Impact Assessment (PIA) conducted by the department in relation to the specific measures contained in this bill be undertaken and made publically available," the dissenting report states.

In its submission to the inquiry, the Law Council of Australia Called for the bill to include mandatory encryption of any biometric data retained.

"This requirement should be included in the Bill as it would assist in ensuring individuals that their privacy and security is maintained," the organisation argued.

In response, the Department of Immigration and Border Protection pointed to measures in the Migration Act governing the access and disclosure of identifying information, the department's adherence to the Australian Privacy Principles and its use of government information security standards.

The department also noted a project being conducted by the Privacy Commissioner looking at current obligations to securely store biometric data. The commissioner is due by 30 June to finalise a privacy assessment on the collection, storage, sharing and use of biometric data.

However the dissenting report by Bilyk and Lines states that Labor senators "would welcome amendments to the bill that provide for additional security measures reflecting the sensitivity of the data collected, and would support amendments that address a requirement to notify the individual and the Privacy Commissioner for data breach notification in the event of a breach".

The senators wrote that Labor holds "specific concerns around the lack of safeguards for minors and 'incapable' persons in the legislation", the potential indefinite retention of biometric data, and a lack of regulatory powers on the part of the Privacy Commissioner.

"Whilst Labor Senators note that the Committee majority recommends that a Privacy Impact Assessment (PIA) be undertaken and made publically available before passage of the bill, we believe that the concerns of the Committee are best addressed as amendments to the legislation," the senators argued.

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