May 10, 2016 In response to the challenges of mass migration and concerns for the maintenance of national security, law enforcement and security priorities, Australia’s migration programme is now focused on robust regulatory compliance, which is given effect by the Department’s ever-expanding authority and reach.
Complexity of Australia’s immigration laws and the new era of regulatory compliance and enforcement
The new era of regulatory compliance and enforcement has resulted in significant and ongoing change to Australia’s immigration laws, which are already the most complex in the world.
Currently, the Migration Act 1958 (Cth) (Migration Act) and the Migration Regulations 1994 (Cth) (Migration Regulations) contain some 3,000 pages of law and regulation in regard to some 134 visa classes and 233 subclasses.
The Department has extensive instructions and policy guidelines which serve to guide departmental officers in decision-making processes.
The Department commercial version of these guidelines are available to immigration consultant and agents strictly by licence only. As in the case of Australia immigration laws, these extensive instructions and policy guidelines are also subject to significant and ongoing change.
The Department currently receives some 18,000 visa applications every day, worldwide. This reflects the significant demand for temporary and permanent entry to Australia.
The Department continues to raise significant revenue from visa fees and fines. In 2014–2015 this revenue was about $1.87 billion.
This new era of regulatory compliance of what is now an enforcement agency (and a criminal enforcement agency) is reflected in the significant legislative reforms which have come into effect since 1 July 2015, including:
• the Australian Border Force Act 2015 (Cth);
• the Customs and Other Legislation Amendment (Australian Border Force) Act 2015 (Cth);
• the Proceeds of Crime Act 2002 (Cth);
• the Law Enforcement Integrity Commissioner Act 2006 (Cth);
• the Law Enforcement Legislation Amendment (Powers) Act 2015 (Cth);
• the Telecommunications (Interception and Access) Act 1979 (Cth);
• the Migration Amendment (Strengthening Biometrics Integrity) Act 2015 (Cth); and
• the Privacy Act 1988 (Cth).
• The Department and the Australian Border Force
The merged Department is a global organisation controlling the movement of goods and people across Australia’s border. Its focus is on enforcement (and criminal enforcement) with the commitment to deliver national security, law enforcement and security priorities.
This focus is reflected in the significant powers of the Australian Border Force as an integrated, operational border protection organisation which undertakes a broad range of operational activities, including monitoring, compliance and enforcement activities, investigations, and the management of detentions and removals from Australia.
Driven by the Department’s policy and strategy, the Australian Border Force’s operations are informed by and contribute to the Department’s intelligence. As an organisation protecting the integrity of Australia’s migration system, the Australian Border Force Commissioner has the same standing as the heads of key national security related agencies namely:
• the chief of the Australian Defence Force;
• the director general of the Australian Security Intelligence Organisation; and
• the commissioner of the Australian Federal Police.
The Department and the Australian Border Force work ahead of the physical border to identify and manage risks; to detect and interdict risk present in the Australian waters and entry/exit points; and to provide and enforce the framework for the movement of people and goods in and out of Australia.
As visa and migration fraud seeks to undermine the integrity of the migration system, the Department and the Australian Border Force continue to undertake a range of initiatives to enhance intelligence, compliance and enforcement actions.
The Department has significantly heightened the security of its systems through increased use of biometrics, analysis of metadata/data, a whole-of-government approach, international partnerships, automated gates, trusted trade schemes and such like.
As an intelligence-led, mobile and technologically enabled force working onshore and offshore, including with strategic partners, the Australian Border Force operates under the Strategic Border Command to counter threats ahead of the border. It employs sophisticated risk assessments through visa programmes, and work with international partners to deliver enforcement outcomes.
The Australian Border Force and the Department have a range of expertise, referred to as “Engineering and Technicalâ€_x009d_, which includes computer forensic investigations, forensic document examination, operations and specialist technical support and training.
The work and focus of the Department and the Australian Border Force to protect the integrity of the migration system is reflected in the following recent legislative reforms.
Australian Border Force Act 2015 (Cth)
The Australian Border Force Act 2015 (Cth) (Border Force Act) confers significant powers on the Australian Border Force and the broader Department and has a strict emphasis on enforcement.
Customs and Other Legislation Amendment (Australian Border Force) Act 2015
The Customs and Other Legislation Amendment (Australian Border Force) Act 2015 (Customs Amendment) and the Border Force Act extend significant operational powers to the broader Department including in areas of:
• controlled operations under Part 1AB of the Crimes Act 1914 (Cth) (Crimes Act);
• integrity testing under Part 1ABA of the Crimes Act;
• assumed identities under Part 1AC of the Crimes Act;
• access to stored communications warrants under the Telecommunications (Interception and Access) Act 1979 (Cth); and
• applications for freezing orders under the Proceeds of Crime Act 2002 (Cth).
Proceeds of Crime Act 2002 (Cth)
The Proceeds of Crime Act 2002 (Cth) (Proceeds of Crime Act) provides for a Commonwealth statutory scheme to confiscate the proceeds of crime, and allows for several types of orders to be made in relation to proceeds-of-crime matters, including freezing orders and restraining orders.
Law Enforcement Integrity Commissioner Act 2006 (Cth)
The Customs Amendment amended the Law Enforcement Integrity Commissioner Act 2006 (Cth) to extend the jurisdiction of the Law Enforcement Integrity Commissioner to include the Department on a whole of agency basis.
The Integrity Commissioner, supported by the Australian Commission for Law Enforcement Integrity (ACLEI), is responsible for preventing, detecting and investigating serious and systemic corruption issues in prescribed Australian government law enforcement agencies.
Law Enforcement Legislation Amendment (Powers) Act 2015
The Law Enforcement Legislation Amendment (Powers) Act 2015 (Cth) primarily amends the Australian Crime Commission Act 2002 (Cth) and the Law Enforcement Integrity Commissioner Act 2006 (Cth) to clarify the powers of the Australian Crime Commission (ACC) examiners to conduct investigations and the Integrity Commissioner, supported by the ACLEI, to conduct hearings.
The coercive powers of the ACC examiners and the Integrity Commissioner are expressed similarly in the Australian Crime Commission Act 2006 (Cth) and the Law Enforcement Integrity Commissioner Act 2006 (Cth).
These legislative changes give greater powers to the ACLEI and the Integrity Commissioner special powers to ensure that these are not hampered by the suspect’s traditional right to silence.
As such, these coercive powers enable these agencies to obtain information that would not be available through traditional policing methods.
Telecommunications (Interception and Access) Act 1979 (Cth)
The Border Force Act also amends the Telecommunications (Interception and Access) Act 1979 (Cth) to automatically include the Department as an enforcement agency that may have access to telecommunications data and as a criminal law enforcement agency that can seek access to prospective telecommunications.
As an “enforcement agencyâ€_x009d_, the Department can access telecommunications data by prescribing that an “authorised officerâ€_x009d_ of an “enforcement agencyâ€_x009d_ may authorise disclosure of specified information if the disclosure of the information would be “reasonably necessaryâ€_x009d_ for:
• enforcement of a criminal law; or
• enforcement of a law imposing a pecuniary penalty or for the protection of public revenue.
The term “telecommunications dataâ€_x009d_, is not defined in the Telecommunications (Interception and Access) Act 1979 (Cth). The term is generally accepted as being “information about the process of a communication, as distinct from its contentâ€_x009d_. The term also refers to metadata, communications data and communications associated data.
From 13 October 2015, a significant number of authorised agencies have access to metadata, namely access to email (Australian providers only), phone and online activities and social media, including:
• the Australian Federal Police;
• the Australian Crime Commission;
• the Australian Securities and Investments Commission; and
• the Australian Security and Intelligence Organisation.
• Migration Amendment (Strengthening Biometrics Integrity) Act 2015
The Migration Amendment (Strengthening Biometrics Integrity) Act 2015 (Cth) expands the type of biometric data that the Commonwealth government collects, and will continue to collect, on both Australian citizens and non-citizens including in the context of border protection.
Privacy Act 1988 (Cth)
The Privacy Act 1988 (Cth) enables the Department to notify an individual that it collects and shares significant information and data with other government agencies for the purposes of administering its functions and activities. This includes biometrics/personal identifiers which may be disclosed in a broad range of circumstances including to:
• identify information, or information to authenticate the identity of a person;
• facilitate processing persons entering or departing Australia;
• identify non-citizens who have a criminal history, are of character concern or are of national security concern;
• combat document and identity fraud in immigration matters;
• assist processing a protection visa;
• identify or locate a person;
• prescribed investigatory bodies such as the Australian National Audit Office and the Australian Human Rights Commission;
• make arrangements with foreign governments for removal of a person from Australia or for the purposes of extradition of a person to and from Australia;
• make the information available to specified foreign governments, law enforcement or border control bodies of foreign governments, or specified international organisations for the purposes of managing migration issues (see section 5A(3) of the Migration Act); and
• obtain or give assistance in international criminal matters.
The Department’s collection of personal information includes arrival and departure records for travellers to and from Australia and an electronic watch list containing information about persons of concern.
The Department discloses this information for various law enforcement purposes. It also exchanges information with countries or international organisations who have information sharing agreements with Australia.
Data-matching protocol
Increasingly the government is amending legislation to enable the use and disclosure of personal information obtained under the Migration Act and the Regulations for the purposes of enforcing Australia’s laws.
The sharing of information across government agencies is reflected in the temporary working visas and data matching programme protocol (the protocol) between the Department and the Australian Taxation Office (ATO). Under the protocol, more than 1 million temporary visa holders’ records held by the Department are matched with the ATO’s taxation and registration systems annually. The protocol aims to enable the enforcement and recovery of taxation revenue by the ATO and to assist in the maintenance of the integrity of the temporary visa programmes by the Department.
The ATO has also established data-matching programme protocols with banking and financial institutions, a range of corporations, the Foreign Investment Review Board, and other private and public sector organisations which information is used by it for taxation administration and compliance purposes.
The significant and ongoing cooperation between the Department, the ATO and other government agencies aims to ensure compliance with Australia’s laws, including visa, tax and related laws, while maintaining a commitment to protect Australia’s borders.
What’s to come in 2016–2017
The migration programme will continue to focus on Australia’s national interest and the longer-term benefits of migration.
With the growing number of temporary migrants who subsequently become permanent residents, the government is also reviewing the migration programme to ensure that its overall objective to contribute to Australia’s economic, demographic and social wellbeing is achieved.
With the closing of borders in many countries, the politicisation of immigration and the focus on maintaining the security of the nation, the challenges, which are a consequence of global migration, are profound.
The implications for risk, governance and compliance are also profound, as the Department enhances its level of regulatory security and substantially increases its enforcement activities including through the Australian Border Force and as part of a “whole-of-governmentâ€_x009d_ approach.
As the Department continues its significant reform agenda, it continues to make greater use of its e-systems, data analysis and matching, and risk-tiering as part of a more rigorous assessment of individual cases.
The focus continues to be on the integrity of Australia’s laws, its borders and national security.
This article is based in part on the contents of “Plan for Integrationâ€_x009d_ and “Blueprint for Integrationâ€_x009d_ published by the Australian government’s department of immigration and border protection and the Australian Customs and Border Protection Service.
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