Court victory enables asylum seekers in SA to claim unemployment benefits

For many years, asylum seekers attempting to claim benefits from the Unemployment Insurance Fund (UIF) have routinely been turned away by the Department of Labour, despite having made contributions to the Fund during their employment.
However, following a ruling of the High Court of South Africa, Gauteng Division (Pretoria) on 27 February 2019, this will no longer be the case as a result of litigation initiated by Werksmans Attorneys’ pro bono department.
During the course of their employment, employees (including asylum seekers) have a duty to make contributions to the UIF.
The employer makes the contributions on the employee’s behalf by deducting the relevant portion of their salary. Upon termination of the employment relationship, the contributing employee becomes entitled to benefits from the Fund. To claim these benefits, the employee is required to submit, amongst other things, an identity document, in terms of the Unemployment Insurance Act Regulations.
However, asylum seekers (defined as people who have arrived in South Africa and applied for refugee status as a result of being forced to flee their countries of origin) do not have identity documents.
For an asylum seeker to obtain an identity document, their application for asylum must be successful, at which stage they are formally declared to be a “refugee”, and become entitled to a wider body of rights, including an entitlement to an identity document. The regulations to the Refugees Act specify that the asylum application should take no longer than 180 days. In reality, however, many of these applications take longer than 10 years.
Because asylum seekers do not have identity documents they are excluded from claiming benefits from the Fund, despite many having made contributions to the Fund for years.
Such was the case for 5 asylum seekers represented by Werksmans in an application against the Minister of Labour, the Director-General of the Department of Labour and the Unemployment Insurance Commissioner (the Respondents) to declare certain regulations of the Unemployment Insurance Act unconstitutional to the extent that they exclude asylum seekers from claiming benefits; and to direct that the Department of Labour affect the necessary systemic changes to allow asylum seekers to claim benefits.
The application was opposed by the Respondents and subsequently set down to be heard on 27 February 2019.
Upon arriving at court on the day of the hearing, the Respondents conceded on all material aspects of the application, as a result of which the impugned regulations were declared unconstitutional and an order was granted in favour of the asylum seekers, with costs.
This judgment is an important endorsement of the principles of social justice in that asylum seekers who have made contributions to the Fund will now be able to claim their benefits if they are in possession of a valid asylum seeker permit.

Woman finally gets ID card after four-year struggle

Pretoria – Winnie Nkuna could hardly contain her excitement after she finally received an ID card from the Department of Home Affairs after a 4-year struggle.
Nkuna previously faced insurmountable problems as she was married without her consent.
Home Affairs records indicated that Nkuna had been married since 2015 to a man she didn’t know and had three children with him.
But in real life, the Soshanguve resident has never been married and has just two children.
In April last year, the Pretoria News reported that on finding out that she was married and had three children, Nkuna immediately turned to Home Affairs, but was sent from pillar to post for years.
Nkuna, who works as a security officer, said she was shocked to learn that she was married when she had gone to renew her Securities Industry Regulatory Authority certificate. She said she was informed her ID had been cloned.
The 32-year-old was over the moon when the Pretoria News caught up with her.
“I got my ID on Wednesday this week. I’m very excited because I can now live a normal life.
“I’ve already opened a bank account using this new ID and I did not have any problems.
“One thing that stressed me most was that if they started insourcing security guards I would not be one of those because my security certificate would not be renewed,” she said.
She recalled the day she found out: “It was in 2015 when I learnt that I was married to 67-year-old Thomas Mathebula.
“I had gone to renew my certificate and when they took my fingerprints, the picture of the woman who appeared on the system was not me.
“I immediately went to Home Affairs in Ga-Rankuwa to enquire.” T
here she was advised to apply for the smart card ID, which she did, but the card was not issued.”

Election fever grips the House as Home Affairs back-pedals on Fireblade terminal saga

The agreement by Oppenheimer-owned Fireblade Aviation to operate its private terminal at OR Tambo International Airport is all above board. This was the embarrassing back-pedal by Home Affairs before MPs on Tuesday, after months of a furore that traversed the courts and the Public Protector’s desk, leading ultimately to Malusi Gigaba’s resignation over findings that he had ‘told untruths’ in the judicial proceedings. It’s an episode that shows how politicking and political noise scuppers governance.
Home Affairs acting Director-General Thulani Mavuso on Tuesday outlined a series of high-level meetings since officials, and the then Home Affairs Minister Malusi Gigaba, last briefed MPs in late 2018. Gigaba’s departure — the longstanding former director-general Mkuseli Apleni departed in July 2018 after nine years at the helm — appeared to have opened the door to a fresh approach.
These most recent meetings, on 29 November 2018, 12 December 2018 and 7 February 2019 confirmed what the courts had upheld, and what billionaire businessman Nicky Oppenheimer had told MPs in late October 2018: that alongside approvals from 27 government entities from the lease with Denel through to those with Airports Company of South Africa (ACSA) and port of entry co-ordinating committee and others, there was also approval for immigration services to be included at the Fireblade terminal.
The bottom line at Tuesday’s parliamentary Home Affairs committee meeting? The 10-year lease Fireblade Aviation signed with Denel to sublease the terminal space at OR Tambo International Airport was in order. And there was really no role for Home Affairs, except to comply with the court order to provide immigration services at the private terminal, which was similar to VIP terminals. Or put differently: The whole matter fell under the Department of Transport and ACSA, which by law operates airports and leases licences and space, not Home Affairs.
The Home Affairs acting DG’s account was confirmed by Oppenheimer:
“We at Fireblade very much look forward to the discussions with the Department of Transport and ACSA to settle the matter,” he said. The Transport Department representative said the acting DG’s account was “nothing but the honest truth”.
Crucial to note is that those meetings started some two weeks after Gigaba’s resignation in mid-November 2018 in the wake of a leaked solo sex video. The Constitutional Court had dismissed appeal attempts as having “no prospects of success” after at least three courts since 2017 ruled Gigaba had “deliberately told untruths” over his claimed non-approval of Home Affairs immigration services for the Fireblade Aviation private terminal and the Public Protector had recommended that President Cyril Ramaphosa take action against the minister for lying in court in the Fireblade matter.
It is a sign of how governance and policy are frequently interwoven with politicking. Gigaba was widely regarded as part of the radical economic transformation, anti-white monopoly capital grouping supportive of former president Jacob Zuma in the run-up to the ANC 2017 Nasrec conference.
The issue around Home Affairs and Fireblade Aviation was one of those proxy battles: An airport terminal cannot operate without immigration services; absence of Home Affairs services would effectively shut the terminal down.
Some of that interconnectedness of policy, politicking and governance also emerged at the late October 2018 Home Affairs meeting when Black First Land First disrupted the meeting, shouting “Shut down Fireblade” and waving fists at Oppenheimer.
Fellow Fireblade Aviation director Manne Dipico told MPs the ministerial change of mind over the approval happened when there was a change at Denel in late 2015, after which “all of a sudden the minister calls us” with objections. Said Dipico: “The people from Denel stood back. They were no longer energised.”
On Tuesday, Home Affairs Minister Siyabonga Cwele put up a good spin. The push was now on to improve the regulatory framework, with a key question being if ACSA could extend its licensing to third parties.
And it was not above him to put in a plug for the proposed border management authority as a national security solution, even if the founding law is still caught up in the National Council of Provinces. The proposed authority has been sharply criticised as draconian and the result of repositioning Home Affairs from the governance to the security cluster.
MPs were concerned about security, but also at the level at which meetings are being held to clear up the issue about which government department provides what service at which international airport in what manner.
While Fireblade Aviation pays Home Affairs R117,000 a month for immigration services, that’s not the arrangement at Lanseria, where these services are issued as part of a packaged agreement signed with Public Works, from whom the land is leased.
Gigaba’s argument to MPs in his last appearance in early November 2018 was that Lanseria and the Kruger International Airport were public airports. That may well be the case, although Lanseria is privately held, according to a brief history lesson by its CEO Rampa Rammopo, after being founded in 1974 by the Krugersdorp and Roodepoort municipalities, privatised in the dying years of apartheid and more recently acquired by a BEE consortium including a 37.5% stake held by the Public Investment Corporation (PIC), the asset manager of R1.2-trillion of predominantly government workers’ pensions and social savings.
In the end, Parliament’s Home Affairs committee called on Cwele to speed up finalising the regulatory framework to deal with private terminals and matters of national security.
And while there would be bigger questions about the quality of departments, the quality of oversight and the cross-section of policy, law and implementation, it was with this appeal that the Home Affairs committee wrapped up this part of its workload. The pressure is on. Whatever is not finished by the time Parliament rises before the 2019 elections will lapse and fall away. And having a pile of outstanding matters would not look good in the legacy reports each committee, and Parliament, is compiling as a type of hand-over to the incoming parliamentarians after the 2019 poll.
Some committees have an easier time. Parliament’s Finance and Appropriations committees were on Tuesday briefed on matters Budget by the Parliamentary Budget Office. And that pretty much was it. As the Standing Committee on Appropriations chairperson Yvonne Phosa said:
“It’ll be for the sixth Parliament (after elections) to deal with the Budget.”
The Justice committee is pushing against time, and a lapse in finalising the draft report before Tuesday’s meeting means the matter of whether Public Protector Busisiwe Mkhwebane is unfit for office and should be removed, as the DA has asked almost since September 2017, is back on the agenda for the final week of February 2019.
For the Communications committee, the pressure is also on the fill not only four vacancies on the board of the Media Development and Diversity Agency (MDDA), but also the eight vacancies on the board of the SABC, which is inquorate and has been effectively dysfunctional since December 2018.
Amid the time crunch at Parliament, there are the regular items that fill a high-pressure calendar as elections loom, and loom large.
At Tuesday’s opening of the National House of Traditional Leaders, Ramaphosa promised government’s “broad support” for redistributed land to fall under the custodianship of traditional councils. That’s exactly what traditional leaders want as on the whole they deeply dislike alternative structures such as community property associations — these are regarded as alternative rural power bases.
As the National Assembly passed the Carbon Tax Bill — it also adopted the Traditional Leadership and Governance Framework Amendment Bill, two years after it landed in the national legislatures — it was amid plenty of calls to vote ANC, or EFF, or DA.
And the discussion on “transforming the economy to serve the people”, proposed by ANC MP David Mahlobo, the former state security minister, turned into a predictable slanging match on well-trodden party-political lines.
The ANC outlined its contribution to South Africa’s democracy and bettering the lives of people; the DA touted its record in the Western Cape and various metros as “slashing red tape” to create jobs and improve lives; and the EFF promoted its way of doing things on jobs and land.
“ANC baleka (runs away),” was how Cope MP Willie Madisha ended his contribution.
But elections are easy. As the Home Affairs plunge into turbulence over the Fireblade Aviation private terminal showed, policy formulation and adherence, implementation and governance can flail amid political noise and factional politicking. For the new Parliament, it’s something to pay attention to

Election fever grips the House as Home Affairs back-pedals on Fireblade terminal saga

agreement by Oppenheimer-owned Fireblade Aviation to operate its private terminal at OR Tambo International Airport is all above board. This was the embarrassing back-pedal by Home Affairs before MPs on Tuesday, after months of a furore that traversed the courts and the Public Protector’s desk, leading ultimately to Malusi Gigaba’s resignation over findings that he had ‘told untruths’ in the judicial proceedings. It’s an episode that shows how politicking and political noise scuppers governance.
Home Affairs acting Director-General Thulani Mavuso on Tuesday outlined a series of high-level meetings since officials, and the then Home Affairs Minister Malusi Gigaba, last briefed MPs in late 2018. Gigaba’s departure — the longstanding former director-general Mkuseli Apleni departed in July 2018 after nine years at the helm — appeared to have opened the door to a fresh approach.
These most recent meetings, on 29 November 2018, 12 December 2018 and 7 February 2019 confirmed what the courts had upheld, and what billionaire businessman Nicky Oppenheimer had told MPs in late October 2018: that alongside approvals from 27 government entities from the lease with Denel through to those with Airports Company of South Africa (ACSA) and port of entry co-ordinating committee and others, there was also approval for immigration services to be included at the Fireblade terminal.
The bottom line at Tuesday’s parliamentary Home Affairs committee meeting? The 10-year lease Fireblade Aviation signed with Denel to sublease the terminal space at OR Tambo International Airport was in order. And there was really no role for Home Affairs, except to comply with the court order to provide immigration services at the private terminal, which was similar to VIP terminals. Or put differently: The whole matter fell under the Department of Transport and ACSA, which by law operates airports and leases licences and space, not Home Affairs.
The Home Affairs acting DG’s account was confirmed by Oppenheimer:
“We at Fireblade very much look forward to the discussions with the Department of Transport and ACSA to settle the matter,” he said. The Transport Department representative said the acting DG’s account was “nothing but the honest truth”.
Crucial to note is that those meetings started some two weeks after Gigaba’s resignation in mid-November 2018 in the wake of a leaked solo sex video. The Constitutional Court had dismissed appeal attempts as having “no prospects of success” after at least three courts since 2017 ruled Gigaba had “deliberately told untruths” over his claimed non-approval of Home Affairs immigration services for the Fireblade Aviation private terminal and the Public Protector had recommended that President Cyril Ramaphosa take action against the minister for lying in court in the Fireblade matter.
It is a sign of how governance and policy are frequently interwoven with politicking. Gigaba was widely regarded as part of the radical economic transformation, anti-white monopoly capital grouping supportive of former president Jacob Zuma in the run-up to the ANC 2017 Nasrec conference.
The issue around Home Affairs and Fireblade Aviation was one of those proxy battles: An airport terminal cannot operate without immigration services; absence of Home Affairs services would effectively shut the terminal down.
Some of that interconnectedness of policy, politicking and governance also emerged at the late October 2018 Home Affairs meeting when Black First Land First disrupted the meeting, shouting “Shut down Fireblade” and waving fists at Oppenheimer.
Fellow Fireblade Aviation director Manne Dipico told MPs the ministerial change of mind over the approval happened when there was a change at Denel in late 2015, after which “all of a sudden the minister calls us” with objections. Said Dipico: “The people from Denel stood back. They were no longer energised.”
On Tuesday, Home Affairs Minister Siyabonga Cwele put up a good spin. The push was now on to improve the regulatory framework, with a key question being if ACSA could extend its licensing to third parties.
And it was not above him to put in a plug for the proposed border management authority as a national security solution, even if the founding law is still caught up in the National Council of Provinces. The proposed authority has been sharply criticised as draconian and the result of repositioning Home Affairs from the governance to the security cluster.
MPs were concerned about security, but also at the level at which meetings are being held to clear up the issue about which government department provides what service at which international airport in what manner.
While Fireblade Aviation pays Home Affairs R117,000 a month for immigration services, that’s not the arrangement at Lanseria, where these services are issued as part of a packaged agreement signed with Public Works, from whom the land is leased.
Gigaba’s argument to MPs in his last appearance in early November 2018 was that Lanseria and the Kruger International Airport were public airports. That may well be the case, although Lanseria is privately held, according to a brief history lesson by its CEO Rampa Rammopo, after being founded in 1974 by the Krugersdorp and Roodepoort municipalities, privatised in the dying years of apartheid and more recently acquired by a BEE consortium including a 37.5% stake held by the Public Investment Corporation (PIC), the asset manager of R1.2-trillion of predominantly government workers’ pensions and social savings.
In the end, Parliament’s Home Affairs committee called on Cwele to speed up finalising the regulatory framework to deal with private terminals and matters of national security.
And while there would be bigger questions about the quality of departments, the quality of oversight and the cross-section of policy, law and implementation, it was with this appeal that the Home Affairs committee wrapped up this part of its workload. The pressure is on. Whatever is not finished by the time Parliament rises before the 2019 elections will lapse and fall away. And having a pile of outstanding matters would not look good in the legacy reports each committee, and Parliament, is compiling as a type of hand-over to the incoming parliamentarians after the 2019 poll.
Some committees have an easier time. Parliament’s Finance and Appropriations committees were on Tuesday briefed on matters Budget by the Parliamentary Budget Office. And that pretty much was it. As the Standing Committee on Appropriations chairperson Yvonne Phosa said:
“It’ll be for the sixth Parliament (after elections) to deal with the Budget.”
The Justice committee is pushing against time, and a lapse in finalising the draft report before Tuesday’s meeting means the matter of whether Public Protector Busisiwe Mkhwebane is unfit for office and should be removed, as the DA has asked almost since September 2017, is back on the agenda for the final week of February 2019.
For the Communications committee, the pressure is also on the fill not only four vacancies on the board of the Media Development and Diversity Agency (MDDA), but also the eight vacancies on the board of the SABC, which is inquorate and has been effectively dysfunctional since December 2018.
Amid the time crunch at Parliament, there are the regular items that fill a high-pressure calendar as elections loom, and loom large.
At Tuesday’s opening of the National House of Traditional Leaders, Ramaphosa promised government’s “broad support” for redistributed land to fall under the custodianship of traditional councils. That’s exactly what traditional leaders want as on the whole they deeply dislike alternative structures such as community property associations — these are regarded as alternative rural power bases.
As the National Assembly passed the Carbon Tax Bill — it also adopted the Traditional Leadership and Governance Framework Amendment Bill, two years after it landed in the national legislatures — it was amid plenty of calls to vote ANC, or EFF, or DA.
And the discussion on “transforming the economy to serve the people”, proposed by ANC MP David Mahlobo, the former state security minister, turned into a predictable slanging match on well-trodden party-political lines.
The ANC outlined its contribution to South Africa’s democracy and bettering the lives of people; the DA touted its record in the Western Cape and various metros as “slashing red tape” to create jobs and improve lives; and the EFF promoted its way of doing things on jobs and land.
“ANC baleka (runs away),” was how Cope MP Willie Madisha ended his contribution.
But elections are easy. As the Home Affairs plunge into turbulence over the Fireblade Aviation private terminal showed, policy formulation and adherence, implementation and governance can flail amid political noise and factional politicking. For the new Parliament, it’s something to pay attention to

Missed appointment not enough to refuse refugee asylum – court judgment

A man whose father fled Burundi during political turmoil and genocide there in 1994, has been given a fresh start at applying for asylum in South Africa after he was embroiled in a dispute with authorities for about a decade over a missed appointment.
Although Western Cape High Court Judge Ashley Binns-Ward felt it was not up to him to decide whether Alexis Kalisa could stay in SA or not, he referred Kalisa’s matter back to the Refugee Appeal Board so that his asylum application could be determined afresh.
Kalisa’s travails began in 1994 when his parents fled Burundi for neighbouring Rwanda during a time of extreme turmoil in the region, following the death of the presidents of Burundi and Rwanda in a plane crash and severe conflict between Hutus and Tutsis.
The judgment noted that Kalisa’s father was being persecuted in Burundi because of his affiliation to a political grouping known as the “Union pour le Progres National” (the Union for National Progress).
Kalisa’s family lived from “hand to mouth” in Rwanda and he joined or aligned himself with an opposition political movement there.
In 2005, at the age of 18, he left Rwanda for South Africa and applied for asylum.
It was refused by the refugee status determination officer at the refugee reception centre in Port Elizabeth in 2007.
He lodged an appeal against the decision to the Refugee Appeal Board but skipped the appointment in 2008. As a result, his bid failed.
In the judgment, it emerged that Kalisa moved to Cape Town and in a wave of xenophobic violence in 2008, found himself living at a temporary site for foreign nationals set up at the Youngsfield Military Base in Cape Town.
While there, he was encouraged to regularise his presence in South Africa and on the insistence of the Department of Home Affairs, submitted a fresh application for asylum in 2008.
After the violence subsided and he could go back to work, he periodically had his asylum-seeker permit extended.
But in August 2017 he was told that because his previous appeal to the Refugee Appeal Board had been unsuccessful, he had to leave South Africa.
He took the matter to court where the law clinic had argued that it would be inhumane to separate the family.
Binns-Ward found that authorities were supposed to consider the merits of the matter whether he was present or not, instead of turning him down because he failed to turn up for the hearing.
The court provided a strict timeline for Alexis Kalisa, the Department of Home Affairs, and lawyers from the University of Cape Town’s Refugee Law Clinic, which represented him, to adhere to.
The judge’s orders include that the 2008 decision of the Refugee Appeal Board dated April 3, 2008 rejecting his application for asylum be set aside and that the matter be sent to the authorities for a fresh start.
While this is being dealt with, the validity of Kalisa’s permit must be extended, the court ordered.
In the meantime, Kalisa has made a life for himself in South Africa with two children and his partner, who is from the Democratic Republic of Congo
www.samigration.com

Constitutional Court win paves the way for immigration progress

Immigration law expert Stefanie de Saude Darbandi, representing a family from the Democratic Republic of the Congo (DRC), has helped bring about a change in immigration law by taking the case to the high court and Constitutional Court. This welcome development secures a change in the regulations relating to citizenship by naturalisation, allowing foreigners to apply for citizenship after five years’ permanent residence.
Darbandi, representing the Mulowayi family from DRC, took their case to the Western Cape high court and then the Constitutional Court after their application for citizenship was rejected on the grounds that regulations stated they had to be resident in South Africa for 10 years before they could apply. She argued that regulations prescribing a 10-year period of residence before a foreigner can apply for citizenship were contrary to the Citizenship Act, which prescribes only a five-year period.
Darbandi applied to the Constitutional Court, effectively for confirmation of an order of the Western Cape high court, declaring regulation 3(2)(a) of the Regulations on the South African Citizenship Act, 1995 invalid and setting aside the regulation.
She explains that the regulations were not aligned with section 5(1)(c) of the Act, which states: “The Minister may, upon application in the prescribed manner, grant a certificate of naturalisation as a South African citizen to any foreigner who satisfies the Minister that (c) he or she is ordinarily resident in the Republic and that he or she has been so resident for a continuous period of not less than five years immediately preceding the date of his or her application.”
Darbandi says the Constitutional Court’s finding is good news for foreigners seeking South African citizenship, and removes one of the hurdles in the way of immigration.
“There are encouraging signs of reform in South African immigration law and processes, and the department of home affairs appears to be supporting these positive developments,” she says.
However, more progress needs to be made if South Africa is to succeed in its efforts to attract up to 800 000 high-level foreign skills and large numbers of foreign investors to the country, Darbandi says.
“We can’t be a ‘closed border country’ if we want the economy to grow. While this Constitutional Court finding is a step in right direction, making the regulations less restrictive and South Africa more appealing to foreigners, all stakeholders need to work together to make visa and immigration regulations and processes less restrictive.”
Darbandi has long campaigned for uniform application of visa and immigration policies, and for a more open approach to immigration in general. As a founding member of a new Task Team for Immigration Reform, which is backed by Business Leaders South Africa, she aims to continue working to address shortcomings in the current system, which, she says, still forces too many people to suffer wrongful outcomes, delays and various injustices.
“Immigration has been found to have a measurable positive impact on GDP growth, yet our laws, and the inconsistent way in which regulations and policies are enforced, are closing our borders to foreign investors and skilled foreign workers who could both address our in-country skills gaps and support much-needed knowledge transfer,” Darbandi says.

Home Affairs denies mass surveillance capabilities of face-matching database

The technical specifications of the system ‘would not allow it’, the department has claimed.
The Department of Home Affairs has told a Parliamentary Joint Committee on Intelligence and Security that the government’s identity-matching capability could not be used for mass surveillance, as its technical specs simply would not allow for it.
“The services enabled by the legislation are not intended to provide agencies with mass surveillance capabilities. Indeed, the technical design of the system could not facilitate this … as it requires users to input a single still image at a time to conduct a query,” Acting First Assistant Secretary at Home Affairs’ Identity and Biometrics Division Andrew Rice told the committee on Friday, ahead of the departmental leadership change.
“It can’t be connected directly to a live CCTV feed. Even if the agencies attempted to circumvent this by conducting multiple queries in close succession, the way the service operates makes it implausible that agencies could do this to support real-time identification of multiple individuals within a crowd, for example.”
The comments were made following an appearance in front of the same committee earlier that day by Human Rights Law Centre executive director Hugh de Kretser, who raised concerns over the ability of agencies to have real-time surveillance of crowds of people “going about their business, going about their daily lives, and scan faces to merge contemporaneously or almost contemporaneously with a database of images”.
The committee was specifically reviewing the Identity-matching Services Bill 2018 and the Australian Passports Amendment (Identity-matching Services) Bill 2018, which were introduced by the Australian government in February to allow for the creation of a system to match photos against identities of citizens stored in various federal and state agencies.
The Australia-wide identity-matching initiative will allow state and territory law-enforcement agencies to have access to the country’s new face-matching services to access passport, visa, citizenship, and driver licence images from other jurisdictions.
The Face Verification Service (FVS) is a one-to-one image-based verification service that will match a person’s photo against an image on one of their government records; while the Face Identification Service (FIS) is a one-to-many, image-based identification service that can match a photo of an unknown person against multiple government records to help establish their identity.
“Face identification service users will receive a gallery of possible matches in response to each query they submit. The system does not provide a single confirmed match. It is then up to users with appropriate facial-recognition training to consider the gallery of possible matches returned by the system and select a short list for further investigation,” Rice explained on Friday.
“Only at that point does the agency receive biographic information about the short-listed candidates — the final identity solution decision still needs to be made by the user agency.”
He said the system has been specifically designed in such a way as to ensure there is always a person in the loop in FIS transactions.
“The system is designed not to rely solely on the technology for identity resolution decisions,” he continued.
“We need to make sure — and this is what we’re doing with the jurisdictions and with agencies that will be prescribed under the Bill — to put in place a training regime to make sure that the officers who access the service have got the right skills, encouraging agencies … to think about the face identification service as being a specialist capability that a small group of people do and do all the time. That’s what happens in our department at the moment. The face resolution staff are a small team, and that’s all they do. It’s about putting in the range of controls to deal with the fact that, because of the very nature of biometrics, there will be some probabilistic anomalies that have to be sorted out.”
Facing the same committee in May, Rice said the department had purchased a facial recognition algorithm from a vendor to be used for the FIS, however Home Affairs received immunity from disclosing who the contract was awarded to, citing mostly security concerns.
“The FIS enlivens significantly a threat to assumed identities, so that’s security and law enforcement covert operatives and witnesses under protection, so we received an exemption under the Commonwealth procurement rules to not publish the identity, the name of the vendor that’s providing the facial recognition service,” Rice said at the time.
“It’s just reducing the potential vectors of attack.”
Rice told the joint committee that as all of the vendors providing biometric or facial recognition services use different algorithms, naming the vendor employed would potentially increase the threat of attack.
On Friday, he held firm on the department’s position, saying knowing which vendor it is gives the potential for some kind of intrusion against that company in order to gain access to information relating to the algorithm.

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