Migration Amendment (Strengthening Biometrics Integrity) Commencement Proclamation 2015

Overview

The Migration Amendment (Strengthening Biometrics Integrity) Act 2015, enacted by the Australian Parliament, was introduced to address gaps and shortcomings in the existing legislative framework concerning the collection of personal identifiers, specifically biometric data, for immigration purposes. This Act, which received Royal Assent on 26 August 2015, aims to streamline and consolidate the various provisions related to biometric data collection, thereby enhancing the integrity and efficiency of the immigration process. The objective of the Act is to provide greater flexibility in the types of biometric data that can be collected, the circumstances and locations for collection, and the methods by which such data can be obtained, including the ability to collect data from minors and incapacitated individuals without additional consent requirements. The commencement of the Act's provisions is set by the Migration Amendment (Strengthening Biometrics Integrity) Commencement Proclamation 2015, which fixes 16 February 2016 as the date for the Act's Schedule 1 to commence. This proclamation ensures that the legislative changes are implemented in a timely and orderly manner.

Scope and Application

The Migration Amendment (Strengthening Biometrics Integrity) Act 2015 applies to non-citizens and citizens at the border, and encompasses the collection of personal identifiers under the Migration Act 1958. The Act aims to streamline and simplify the existing provisions related to the collection of these identifiers, addressing existing gaps and shortcomings in the legislative framework. It introduces a broad, discretionary power to collect personal identifiers, providing flexibility in the types of identifiers, the circumstances of collection, and the locations where they can be collected. The Act also allows for the collection of personal identifiers from minors and incapable persons without requiring parental consent or the presence of a guardian or independent person during the collection process. The Act applies across Australia and its commencement is fixed by Proclamation, with the provisions set to begin on 16 February 2016. The Act does not specify any exclusions or exemptions, and its application is not restricted by thresholds. Subordinate instruments may extend or further detail the application of the Act.

Key Provisions

The main operative sections of the Migration Amendment (Strengthening Biometrics Integrity) Act 2015, as amended, pertain to the consolidation and simplification of the provisions relating to the collection of personal identifiers (sections 1 and 2). Schedule 1 to the Act streamlines the existing personal identifier collection powers into a broad, discretionary power to collect one or more personal identifiers from non-citizens and citizens at the border. This includes providing flexibility on the types of personal identifiers that may be required, the circumstances in which they may be collected, and the places where they may be collected (section 3). The Act also enables personal identifiers to be provided in various ways, such as through an identification test or another method specified by the Minister or an officer (section 4). Furthermore, it allows personal identifiers to be required by the Minister or an officer in different formats, including orally, in writing, or through an automated system (section 5). The Act also allows for personal identifiers to be collected from minors and incapable persons without the need to obtain consent or require the presence of a parent, guardian or independent person (section 6). Finally, it omits provisions that are unused and no longer necessary (section 7). The Act imposes several obligations and requirements on the parties or entities it governs. Firstly, the Minister or an officer must have the broad, discretionary power to collect one or more personal identifiers from non-citizens and citizens at the border (section 3). Secondly, the types of personal identifiers that may be required, the circumstances in which they may be collected, and the places where they may be collected must be flexible (section 4). Thirdly, personal identifiers must be provided either by way of an identification test or another way specified by the Minister or an officer (section 4). Fourthly, personal identifiers must be required by the Minister or an officer either orally, in writing, or through an automated system (section 5). Finally, personal identifiers must be collected from minors and incapable persons for the purposes of the Migration Act and Migration Regulations under the new broad power without the need to obtain the consent, or require the presence of a parent, guardian or independent person during the collection of personal identifiers (section 6). There are several offences, penalties, or civil/criminal consequences for breach of the Act, including maximum penalties where stated. Firstly, a person who intentionally fails to comply with a requirement to provide a personal identifier may be guilty of an offence and face a maximum penalty of 500 penalty units or imprisonment for six months, or both (section 8). Secondly, a person who intentionally provides false or misleading information in relation to a personal identifier may be guilty of an offence and face a maximum penalty of 1,000 penalty units or imprisonment for one year, or both (section 9). Thirdly, a person who intentionally interferes with the collection of a personal identifier may be guilty of an offence and face a maximum penalty of 2,500 penalty units or imprisonment for two years, or both (section 10). Finally, a person who intentionally causes harm to another person in the course of collecting a personal identifier may be guilty of an offence and face a maximum penalty of 5,000 penalty units or imprisonment for five years, or both (section 11).