Summary of proposal

The discussion paper proposes that the legislation enable immigration officers to:

• require, use and store internationally-agreed standard types of biometric information (other than DNA), and
• request the voluntary provision of other types of biometric information, such as DNA and age verification tests.

Submitter response

One hundred and two submitters responded to this issue: 56 submitters responded on behalf of an organisation and 46 submitters responded as private individuals. Organisations that made submissions included immigration consultants, ethnic councils, refugee and migrant groups, human rights groups, law societies, community law centres, other community groups, businesses, representatives of the airline and tourism industries, a union representative, the United Nations High Commissioner for Refugees, government agencies and two political parties.

Overall, approximately 60 percent of submitters who addressed this issue agreed that the new legislation should include provisions enabling immigration officers to require, use and store biometric information. Approximately 20 percent were opposed to proposal and approximately 20 percent of submitters either were unsure or did not express a clear preference either way. There was a difference in response between organisations and individuals, with just under half the organisations indicating clear support for the proposal compared to approximately 70 percent of individual submitters. Approximately a third of the organisations that addressed this issue did not indicate support or opposition to the proposal.

A number of submitters commented on the increasing use of biometric information internationally and the need for New Zealand to keep up to date with developments and make appropriate legislative provision for the use of biometric information in immigration processes. Some submitters noted the potential for biometric information to serve the dual purpose of enhancing border security and facilitating the entry of low-risk travellers. Many submitters emphasised the need for the use of biometric information to be consistent with internationally-agreed standards, in particular the standards of the International Civil Aviation Organisation (ICAO).

The NZAMI recognises that more extensive and sophisticated use of biometric information is going to become a standard for international travel in the future. It is appropriate that the government take the opportunity presented by its Immigration Act review to introduce legislation that deals with the acquisition, use and storage of internationally-agreed standard types of biometric information. (New Zealand Association for Migration and Investment)

Developments in technology since 1987 provide many opportunities to adopt new approaches to managing the border, enhancing security while at the same time providing efficient and effective facilitation of legitimate travellers. Biometric technology is one development which has the potential to achieve this two-fold purpose and it is important that the legislative framework provides the opportunity to take advantage of this development. (Air New Zealand)

Some submitters commented that the legislation should lay out the broad principles for the use of biometric information, with the detail of particular technologies in regulations. They noted that biometrics is a rapidly changing field of science and the legislation needs to be sufficiently flexible to permit the use of new technologies in the future.

Many submitters commented on the safeguards that need to be addressed in the legislation. Submitters commented that the legislation should be consistent with privacy and human rights legislation, and include provisions on:

• the uses to which the information must be put
• the length of time that information be stored and the means by which it must be stored
• the circumstances under which information may be shared with other governments and other government departments
• the means by which individuals can access and, if necessary, correct their personal information, and
• a process for reviewing the handling and use of biometric information.

It will be important to put in place a thorough review process so that the process for handling biometric information is not only under review but that it is scrutinised thoroughly to prevent misuse or inappropriate use of the personal information that is gathered. (Immigration and Refugee Law Committee, Auckland District Law Society)

A number of submitters considered that a detailed privacy impact assessment should be undertaken to ensure that the appropriate safeguards are put in place. Submitters considered that this assessment should be undertaken by the Privacy Commissioner or another independent body.

Given the significant privacy implications, it is submitted that a comprehensive privacy impact assessment should be undertaken as soon as possible, and certainly before any legislative references to biometrics are introduced into Parliament. (Human Rights Foundation)

The United Nations High Commissioner for Refugees commented on the safeguards required to prevent adverse consequences for people seeking protection in New Zealand and expressed the view that there should be restrictions on the sharing of biometric information with other countries in such cases.

In regard to the principles of privacy and confidentiality, UNHCR is of the view that the proposed legislation should specify that when information on biometric testing of certain individuals is to be shared with another country (notably in the context of ascertaining whether a person had sought protection in another country), such information-sharing should be the subject of specific agreements. These agreements should include, inter alia, restrictions on the parties who would be privy to this information, and prohibitions on the dissemination of this information to any party that is not specifically included in the agreement. It should also be clearly stated that this information should not be shared, under any circumstances, with the authorities of the country of origin of the individual concerned or of the foreign country in respect of which the application or claim is made. (United Nations High Commissioner for Refugees)

A number of submitters commented on the reliability of the technology used to collect biometric information. One submitter commented that facial recognition technology had been found to be inaccurate in some countries. Another noted that DNA testing requires a sufficient database of the background ethnic population, which may not always be possible in the immigration context. Others commented that reliability issues need to be addressed in the legislation.

Legislation in this area needs to specify the reliability of any biometric testing used and the evidentiary weight to be applied to each test. This is important for situations where documentary and other evidence conflict with the results of a test. (Wellington Community Law Centre)

Some submitters questioned who would meet the costs of the use of biometric information. Airlines cautioned against any expectation that they be required to re-equip with new technology at the border. A number of submitters expressed the view that applicants should not bear the cost, particularly refugee applicants who are offered DNA testing in order to establish family relationships.

While most submitters accepted the use of internationally-agreed standards types of biometric information in immigration processing, many expressed concerns about giving immigration officers the power to request voluntary provision of other biometric information. Some submitters considered that immigration officers should not have this power on the grounds that DNA testing and age recognition tests are intrusive and applicants may feel compelled to provide the information. One submitter commented that the proposal fails to take account of the impact of such intrusion on particular ethnic, cultural and religious groups.

Officials should not have the ability to request the voluntary provision of other types of biometric information (such as DNA). The concern is that while it is framed as a voluntary submission, applicants may feel compelled to provide samples. Furthermore, if they refuse to provide samples there is a risk that it could prejudice their application, or there could be at least a perception of this risk. Provision of this type of information is intrusive and applicants may not adequately understand the nature of their rights. (Global Immigration Group)

The second limb of the proposal is more problematic from a human rights perspective. The use of DNA tests and age verification tests, by definition are intrusive and involve the potential invasion of bodily integrity. This aspect could engage s 21 of the NZBORA, depending if such tests could be considered "reasonable". (Federation of Islamic Associations of New Zealand)

Other submitters commented on the restrictions and safeguards that should be put in place. These included:

• ensuring that any DNA testing is used solely for the purpose of assessing immigration and refugee applications
• developing protocols on confidentiality and the consequence of "unexpected results"
• providing counselling, particularly to refugee applicants, and
• requiring that immigration officers do not make a negative inference if a person refuses to provide biometric information.

Some submitters considered that DNA testing should not be used as the sole basis for determining family relationships. A number of submitters, on the other hand, considered that DNA testing should be used more widely.

I believe that immigration officers should probably routinely demand biometric information, including the provision of DNA and if needed age verification tests. This should assist in avoiding deportation of the wrong person and assist to confirm the identity of those who may use several different names. (Individual submitter)

Some submitters did not support any use of biometric information.

To allow for collection of biometric information such as fingerprints and iris scans from all people trying to enter New Zealand to detect some identity fraud or a few high-risk individuals will be a step too far. People attempting to enter a country should not be treated like criminals. If there is a need for the collection of biometric information to detect identity fraud and very high-risk individuals, then such collection should be limited to people considered as posing a risk. (Immigration Committee, Tongan community)

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