Senate Legal and Constitutional Affairs Legislation Committee, , 4:57:30 to 5:11:37
Officials discuss ongoing negotiations with the United States regarding the Enhanced Border Security Partnership (EBSP) and its potential impact on the visa waiver program for Australians.
Topics: National security, Privacy
Speakers: Senator David Shoebridge, Hamish Hansford, Ciara Spencer, Unknown Speaker, Senator Jana Stewart
Um we have some questions about the enhanced water security partnership, the EBSP. Is that you tell us to answer it? Um you would have seen that the EU have advanced their negotiations.
I've seen this here. The EU has agreed a framework with the United States, which then will be implemented.
I'm having trouble hearing you.
Uh I understand the the EU has agreed a framework with the United States that will then be implemented 27 different ways in the EU context.
Well, I think the EU has proposed the framework and they've put it out for consultation. The EU council um have put out an explanatory memorandum for their consulting on it.
Yes. I think following discussions and agreement with the US, that's the process they're moving forward with.
Um can you update us on where negotiations between Australia and the Trump administration are on the enhanced border security partnership?
Um certainly, Senator. So I think that the first thing to say is that without the visa waiver programme, Australians would have to apply for a visa to the United States and provide relevant information. With that as context, we have been uh discussing with the United States. Um I personally discussed um the visa waiver programme between the 25th and the 27th of August with the US. In doing so, we talked about what model might well be able to support um the continuation of the visa waiver program. And in doing that, we we very much talked about our privacy act, um, the Australian privacy principles, the fact that privacy impact assessment would have to be undertaken, the data that the US would require, and then subsequently in October, a team from home affairs went to the United States to continue the discussions about the expectations of the US under the Enhanced Border Security Partnership Programme, what that would mean for Australians, and what data uh the US would uh require. Noting that um it without the visa waiver programme, the only other option for Australians to travel to the United States would be a visa. Um and so we are talking about that in in the context of the technology that's applied to that data. We're talking about uh with the US um where That information might be hosted, or indeed whether or not there's a different way to uh uh to um work the system in terms of if there would be a process where um Australia could do the checking and provide a result to the US and then where there's a result that requires more information to put an Australian in a visa scheme, they're all the things that we're talking about. So I think to summarize, no agreement's been finalised, we're engaging with the US at the moment.
You didn't want to add anything, Ms. Spencer? Were you part of the either of you part of the team that I assume went to the US for October in October?
Uh no, Senator.
No?
Neither of us, no.
And is anyone in the room part of that team?
Who did one of my staff members who's now on another international engagement?
I'm sorry.
Sorry, it's one of my staff members who is now currently overseas for meetings.
All right. I thought you said though, a team went to the US.
Sorry, an individual from Canberra supported by one of our officers at post who's part of the home affairs team.
And that individual from Canberra is now on another overseas trip. On another overseas work trip. All right. You will have seen the way in which the EU sought to provide a higher level of protection for what is called in their agreement special categories of personal information. And they are defined by the EU to mean personal information revealing racial or ethnic origin, political opinions, or religious or other beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, personal information concerning health or sex life, an individual's name, data, birth, place of birth, nationalist citizenship or other basic biographic identity information shall not be deemed to constitute in themselves special categories of personal information. Are you aware of that that's been negotiated as I understand it between the US and the EU as a category of information that requires additional protections?
Yes, Senator, we're both aware of that from the EU, but also aware through discussions with other five eyes partners about the approach that they're taking with the US.
So is it the government's position in negotiations that that kind of information, and I won't read out again, but it involves racial, ethnic origin, political opinions, trade union membership, um a person's health or sex life. Is it intended that that will not be handed over to the United States under the enhanced border security partnership is intended to protect that?
Senator, we're focused on um personal privacy protection and looking as far as we can to options that require consent from any Australian traveller.
Well, um consent is one thing, but if you've set in train and agreed to a process where there's an expectation that that kind of information, someone's racial or ethnic origin, their political opinions, their trade union membership, if if the provision of that information is necessary for getting a visa under the enhanced border security partnership, well then questions of consent become much harder to navigate for people if the government's agreed to a uh an arrangement where that kind of information is expected to be handed over. So I'm is your only protection in relation to that intended to be one of consent. We're going to make these arrangements, and if you want it, buy in, and if you don't, tough luck.
Uh no, Senator. So there's no agreement that's been finalised with the US. We're engaging with the US and I think relevantly the Privacy Act already provides that uh Australian information like biometric information is sensitive information and already has additional protection. So we've we've outlined that to the United States uh and particularly the requirements of our privacy act and our discussions are ongoing.
Well, last time we asked this, and I think it was May, some time ago, you said, Ms. Hansford, it's unclear on some elements about what the US is requiring. So that's why we're having the meetings to understand their specific requirements. Well, you've now had since that evidence, you've had two rounds of meetings. You had the rounds of meetings that you're a part of, Ms. Anivot, in in late August over three days. And then Ms. Spencer's team member and another went and had a round of meetings in October. So I'm going to ask you again what elements, what identity elements, what information are the US seeking under the EBSP?
So our discussions are still ongoing. You you'd appreciate Senator, it's a complex area that we've got to navigate with the US. Every country comes to the US discussion with a different annual temporary visa refusal rate with the acceptance of repatriation of its citizens and entering into an agreement in terms of lost and stolen passports, a whole range of different issues. That's the first element that the US considers, and then the practicalities, the laws, the privacy requirements, access to things like criminal histories, they're all the things that we're talking to the United States about.
Well, I'm not asking what you're talking to the United States. I'm asking about what the United States is saying they want. As I said last time, you told us in May that it's unclear on some elements about what the US is requiring. That's why we're having the meetings. Are you telling me nothing's advanced? You've had three days of meetings in August, you've had further meetings in October, and you still don't know. You've got no idea what it is the United States asking for. Is that your reply?
No, we we have much more fidelity about what the United States requirements are, and they have much more understanding about our legal framework, our technical limitations and opportunities, and and we are advancing the discussions.
All right. Well, you say you have much more understanding. That's the exact issue that I'm asking you in my questions. What do you understand now, after these two rounds of meetings about what information the US is seeking that you didn't know last time we had this conversation, Mr. Hansford?
So a number of different things. The key key requirements of the US are about and kind of rightfully so that when you when you're fill out the visa waiver program, you're required to outline whether or not you have a criminal history. And the US argument, um, first argument is that people are filling that out, and some people who do have a criminal history tick no that they don't. And so what the the first requirement of the US is to validate from the partner country, in this case Australia, whether or not that statement is accurate. So the first requirement of the US is to understand whether or not the individual travelling to the United States has a criminal history or not. And that's a relevant consideration for the US government on the visa waiver programme. So that's the first area. The second area is to make sure that who is coming to the United States is the individual who's applied for the visa waiver programme. They're the two principal areas that we're exploring with the United States.
Well, is what the United States seeking a binary answer, yes or no on criminal history, or are they seeking information about if somebody does have a criminal history, the elements of their criminal history?
That that is precisely that we are trying to negotiate with the US. There are many different models. One model is to provide the actual criminal history to the US, but that that's a model that other jurisdictions are thinking about with the US. Another model might well be to say yes, this person does have a criminal history and to then push them into a visa pathway for them to apply to a visa for the US by not providing the actual criminal history. They're all the things that we're talking to the United States about how an Australian system might well work.
But what is the United States asking for? Are they asking for the criminal history, the details in the criminal history? Is that their negotiating is that the start of their negotiating point? Is that what they're asking for?
So the policy that the US government is working towards is to validate whether or not what an individual has said on a visa waiver programme application is accurate. Well, how we get to that outcome. I've found the US government officials that we've engaged, I've personally engaged officials when they came to Australia, but then equally with the team, that they're open-minded as to how that outcome might be achieved.
You can't be having conversations like we're having, where the US is never putting their position forward and it's an opaque, you're sort of like, you know, you're trying to put pin the tail on a jellyfish. I'm assuming the US is coming and saying this is what we want. Can you provide it? And then you're having a discussion. So, Ms. Hansford, what are the US asking for? I'm sure they're not just coming here with a series of platitudes and outcomes. They're asking for information. What do they want?
So they are the two principal policy discussions and areas that they have asked. Identification and criminal history.
So they want the details of the criminal history.
So no. So they want the at the policy outcome to make sure that when an individual ticks know they do not have a criminal history on a form for the visa waiver programme, that that is then validated by the Australian government. That's the Policy outcome that they're seeking.
Well, when um we unfortunately, Ms. Ansber, we're going to have to come back to this and try and get not the policy outcome, which is you keep answer you that's your answer, but it's not addressing my question. My question is what information are they seeking? We will come back to that aspect.
Sure.
But you also said they want to validate who is coming matches the asserted identity. I'm assuming in order to do that, they want certain information. And what the US has made clear in its negotiations with other countries is that's biometric information. Are they seeking biometric information to determine that question?
Senator, if I may they are seeking assurance of the information provided by the traveller or the applicant. And that includes both biometric and criminal history information. The means by which we provide that assurance is the subject of ongoing discussions between us and the US.
We are clearly going to have to come back to this because you keep talking about a policy outcome. And my questions are really really simple. What information are they asking for? And I am quite certain. That the US officials are not as oblique as the answers I'm getting here, and they have actual demands for specific types of information. And that's the negotiating point. And we will spend as long as it's needed to try and get some answers about what the actual US demands are. And we'll come back to it in the next round.
Thank you, Senator Shubri. Senator Dunning.