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Wednesday, 10 December 1986
Page: 3719


Senator MICHAEL BAUME(4.47) —There are two things that have categorised this debate that are of a most unfortunate nature. The first is the McCarthyite style of Government members attacking anyone who dares to disagree with them. That is probably the most appalling element of this debate. Anyone who decides for very sound reasons that there is a case against this identification card-let us not call it an Australia Card, it is an identification card; this is the mark we will bear, the mark of the authoritarian state--


Senator Maguire —What rubbish!


Senator MICHAEL BAUME —I am glad that the honourable senator says `What rubbish', because the sort of McCarthyism we have had in this chamber has come from him, as it has come from his leader, the Prime Minister (Mr Hawke). I quote to the Senate what the Prime Minister has said:

. . . the Opposition will continue in its role in the community as the friend of the tax cheats and avoiders and its blatant hypocrisy on social security fraud will have been fully revealed.

That is what the Prime Minister said about the Opposition on 21 October 1986. He said that if it chooses not to support the Australia Card, as he calls it, they will be the consequences. We are, apparently, because the Prime Minister says so, offensive because we dare to oppose him. Opponents of this ID card are smeared not for the quality of their thought, not for the right of their position, but for the very fact that they dare to stand up to this authoritarian Government. Of course it is not just the Opposition that stands up to the Government, but the important point is that in this debate we must get rid of the smears, of the McCarthyism, of the attempt to steamroll through this chamber a piece of legislation by passing it by abuse rather than debating it on its merits.

What are the merits of the Australia Card Bill? I can advise the Senate that so great, so well thought out, is this legislation that it has now been admitted by the Minister for Health (Dr Blewett)-this has not been revealed to the Senate yet-that there are to be three amendments in the new year. No doubt that is something that honourable senators on the Government side opposite are not aware of. There are to be three amendments in various areas following criticism of the legislation by the bipartisan Senate Standing Committee on the Scrutiny of Bills. These three amendments might not be of major moment, but they do strike at some very significant elements of this legislation, because they seek to protect the rights of individuals. Let me just tell honourable senators the headings under which these amendments are to appear. There is `lack of parliamentary scrutiny; lack of limitation as to reasonableness as to time or place', when one is required to do something under this legislation; and excessive `delegation'. They are the three areas in which the amendments are to be made. As a way of looking at this, one could think: Is not the Minister reasonable, kind and sensible to give way to the pressure from the Scrutiny of Bills Committee and to make these amendments-even at this late stage, amendments which surely should have been in the original legislation.

Let us look at this question of lack of parliamentary scrutiny. The Scrutiny of Bills Committee noted:

Sub-clause 12 (15) provides that persons included in a class of persons specified by the Minister . . . are not to be obliged to comply with requirements made by an issuing agency with respect to the making of photographs, the provision of specimen signatures and attendance at interviews. No provision has been made for parliamentary scrutiny of such notices and are therefore not subject to tabling and disallowance . . .

That is, disallowance by the Senate. Of course, that tabling and disallowance would be possible if the classes of persons to be exempted were to be prescribed by regulation. But the Government decided to go about it in a different way, doing it by gazettal. The Scrutiny of Bills Committee considers that this `might be considered to subject the exercise of legislative power insufficiently to parliamentary scrutiny', if that procedure continued. The Minister has written back saying: `I agree. There should be parliamentary scrutiny of such notices and they should be subject to tabling and disallowance provisions'. As a result, he has indicated that `the necessary amendments will be made through the Statute Law (Miscellaneous Provisions) Bill in the Autumn Session' of next year. The Committee then thanked the Minister for this undertaking, but it said it `would prefer to see the amendments made to the Bill while the Bill is before the Parliament'. But, of course, we know that because of the desperate situation which the present Government is in, as evidenced by the current opinion polls, the Prime Minister wanted to get the House of Representatives up and away and out of Canberra as quickly as possible. Obviously if these necessary amendments-amendments that the Minister agrees should be made-were to be made now, the members of the House of Representatives would have to come back. As a result, the Committee is prepared to accept the fact that we will have to put up with second best; that is, having this allegedly very well prepared, very thought out, bit of legislation amended next year in respect of that matter. What about the matter of the lack of limitation as to reasonableness of time or place? I quote from the Committee's report.

Sub-clause 121 (1) and 145 (1) provide that a member of the Data Protection Agency or an Associate Commissioner conducting an inquiry in relation to a reviewable decision or an investigation into a complaint may require a person, by notice in writing, to furnish information and produce documents or records relevant to the inquiry or investigation `at such place and within such period or on such day and at such time, as are specified in the notice' . . . Failure to comply with the notice . . . without reasonable excuse is an offence punishable by a fine of $2,000 or imprisonment for 12 months or both in the case of a natural person and by a fine of $10,000 in the case of a body corporate. Failure to attend a compulsory conference as required . . . without reasonable excuse is an offence punishable by a fine of $1,000 or imprisonment for 6 months or both in the case of a natural person and by a fine of $5,000 in the case of a body corporate. In none of the three sub-clauses is it specified that the times and places at which persons may be required to attend or to furnish information or produce documents must be reasonable.

They can be unreasonable as things stand. The Minister has written back saying:

. . . I appreciate the viewpoint expressed by the Committee that the provisions specified should include a proviso that the times and places referred to in notices should be reasonable-and I undertake that this test of reasonableness will be made explicit on the face of the legislation.

Once again, the Minister has indicated that the necessary amendments will be made to the Statute Law (Miscellaneous Provisions) Bill in the autumn session of next year. Delegation is the next matter. The report states:

Sub-clause 186 (1) provides that the chief executive officer of the administering Authority and the President of the Agency may each delegate to `a person' all or any of their powers under the Act . . .

that is, of course, other than the power of delegation. In relation to that the Scrutiny of Bills Committee report states that it:

. . . has been critical of such powers of delegation which impose no limitation, and give no guidance, as to the attributes of the persons to whom a delegation may be made.

Given the nature of the powers to be delegated in the present situation, the Committee recognises that it is `unlikely that it would be necessary for the scope of the delegation to extend beyond the confines of the staff of the Authority and the office holders and staff of the Agency'. But the fact is the legislation does not say who a `person' should be and the delegation could well go beyond those people. The Committee drew to the attention of the Minister the following:

It might be considered to make rights, liberties and/or obligations unduly dependent upon insufficiently defined administrative powers.

The Minister for Health responded by undertaking:

The legislation should be amended so that the intention to restrict the scope of the delegation in this way appears on the face of the legislation.

He indicated that the amendment will be made through the Statute Law (Miscellaneous Provisions) Bill in the autumn session of 1987. So we have before us this `very well prepared' legislation which has to be amended already in three respects after such a short amount of time in this place. But, in fact, one more serious element was brought up by the Scrutiny of Bills Committee which the Minister has chosen, in fact, not to amend. I must say I am concerned about this, because it strikes at something very important indeed. It strikes at the availability of personal information for public access. In brief, the report states:

Sub-clause 25 (6) provides that the provisions of the Act . . . apply in relation to applications and requests made to the Authority and documents given to the Authority to verify the identity and eligibility of persons as if those documents formed part of the Australia Card Register. Such applications and documents will contain personal information to be included on the Register and it is therefore important that they be given the same protection with regard to unauthorised access and improper disclosure as is given to the Register itself.

That is the view of the Scrutiny of Bills Committee. The report further states:

However, sub-sections 55 (1) and (3) are the provisions which exempt the Register from the application of the Freedom of Information Act 1982 and (except to the extent that the Register contains information that relates only to persons who are dead) the Archives Act 1983. It is therefore apparently intended that, subject to the exemptions specified in those Acts, access-that is, access to personal information-will be available to the applications and documents referred to above pursuant to those Acts, even though the Register itself will be exempt.

How meaningful is it to keep information private-we are assured it will be kept private-if, in fact, it is possible to have access to this kind of information which is not yet on the Register? The Scrutiny of Bills Committee stated:

. . . it seemed clear that the relevant applications and documents, to the extent that they contained personal information, would be exempt from disclosure under the two Acts on the ground that to make them available would involve an unreasonable disclosure of information relating to the personal affairs of a person . . . However, the Committee raised the question why it had been chosen to rely on these exemptions, which might be uncertain in their application, rather than to include the applications and other documents in the blanket exception to be provided by sub-clauses 55 (1) and (3). Such applications and other documents by their very nature could only contain personal information required to be entered on the Register, information relevant to such information or to the verification of such information and information relating to the identity of a person or the eligibility of a person for the issue of a Card.

The Committee drew the attention of the Senate to this matter by suggesting that `by leaving open the possibility that such personal information might be made available for public access it might be considered to trespass unduly on personal rights and liberties'. This is essential to the discussion of the ID card. We are continually assured that there is no risk that information will be available, yet here we have that Committee report which says that the Government, by going about it in the way it has in respect of material to go on to the Register, is leaving open the possibility that such personal information might be made available for public access. That seems to me to be of major concern. Having received a response from the Minister, who chose not to follow the Committee's requests, the Committee did the courteous thing of thanking him for his response, but it said:

While in practice the protection accorded to personal information by the Freedom of Information Act 1982 (`FOI Act') and the Archives Act 1983 (`Archives Act') may-

I emphasise the word `may'-

be no less than that provided for information on the Australia Card Register under the Australia Card Bill 1986, the Committee notes that it is structured differently. Whereas under the Bill only the Card-subject or the prescribed representative of the Card-subject (apart from officials of the Department of Social Security, the Taxation Office and the Health Insurance Commission) are to be entitled to access to the Register, under the FOI Act and the Archives Act there is a prima facie right of public access.

This is the key problem. The Government, by going about it in the way that it has, provides a situation in which, under the Freedom of Information Act, there is a prima facie right of public access to this personal, private information to be collected under the ID card. In other words, the strong case put up by the Government-`There is no need to worry, chaps. Everything is all right. Your information will be private and will not be available to public access'-appears to rest on very tenuous grounds. Clearly, there is a prima facie right of public access to this confidential information that, we are assured by the Government, will never see the light of day. Would it not be nice if the Government addressed itself to this kind of issue in the debate instead of the McCarthyist smearing of anyone who dares to bring up a critical point? Of course, the Government has not addressed itself to it. This report is in the hands of the Government. The Government has decided to do nothing about this element of it. As I said, the Minister has said that he intends to propose three amendments. I do not know whether they have gone to Cabinet yet. From the stunned mullet expressions on the faces of senators opposite, apparently it has not gone to Caucus yet. I do not know whether it has gone to Caucus yet.


Senator Childs —Oh, come on. Stunned mullet?


Senator MICHAEL BAUME —Maybe Senator Childs will be able to advise us whether the three proposed amendments to this significant Bill have gone to Caucus yet. I doubt it. All we have had is a letter from the Minister. I doubt whether the Minister at the table, the Leader of the Government in the Senate (Senator Button), would be prepared to tell us yet whether these proposed amendments to this Bill have gone to Cabinet. Maybe he does not know. Frankly, I doubt whether the Ministers have got round to it yet. Ministers seem to be having so many other problems in Cabinet these days. They do not have time to talk to farmers, so I suppose they have not had time to consider the serious problems in this legislation or the need to make amendments. The Committee's report continued:

In both cases an appeal from the refusal to grant access lies to the Administrative Appeals Tribunal. Thus the protection accorded by the FOI Act and the Archives Act may be said at least to be less certain than that provided to information on the Australia Card Register by the Bill.

Here we have a clear cause of concern about the confidentiality of information which is to go on the Register but which has not yet gone on it.

That situation is only part of the problem we face when considering a thing such as the Australia Card. The other day the Age newspaper ran a comment from Michael Barnard, who went to this point about trust, as to, firstly, whether the Government will be able to keep the information secret and, secondly, whether we could trust a government with these kinds of powers. Senator Crowley quite sensibly raised the matter of trust. She said that the only reason we are attacking this is that we do not trust the Government. She is absolutely right; we do not trust the Government. How could we trust a government which has broken so many of its promises? I do not know of any of the 1983 election promises that are extant. Maybe the one about providing jobs has lasted for a while, but that will be wiped out within the next 12 months. As Michael Barnard said in the Age:

How can one take seriously assurances from a Government which, as its own Left rump repeatedly reminds us, has broken one undertaking after another, and whose Treasurer cannot remember even to lodge his income tax return?

He goes on:

Even if the Government's protestation that the Australia Card is merely a piece of identifying plastic that will help stop tax and welfare fraud were wholly true, it still does not answer the point that in the process, and at a time of nagging doubt over the country's future economic and political stability, the Government would be setting in place a centralised data linking system that, in Senator Chaney's recent words, would `provide unparalleled opportunity for abuse of confidential information held by the Health, Tax, Social Security and other departments'.

No government could honestly guarantee-

I suppose the word `honestly' is whimsical in the present circumstances of this Government-

that such a system, even if relatively innocent now, would not soon be refined and expanded by one administration or another. Indeed, experience suggests it inevitably would be. Governmental and bureaucratic demand for personal information is relentless. When did the reader last notice a decline in official intrusions into his or her life?

That is the essential point. What say the Government makes some mistakes? Michael Barnard made the neat point there. What say there were mistakes and things got out-there were errors? He says:

Be assured, the Government now trumpeting the claimed virtues of the Australia Card would be quite cavalier in brushing aside any failures. The prevailing indifference to error was nicely encapsulated recently by Senator Grimes. Confronted with controversial cultural grants to trade unions (we live in an age when every union deserves a musician or artist in residence at taxpayers' expense) he told the Senate (Hansard 19 November p 2544): `If some mistakes were made and some funding went in the wrong direction, I ask you honourable senators, so what?'

That is the Government's answer when there are mistakes, failures or muck-ups-so what? Michael Barnard continued:

So what, indeed. Mistakes and mid-course changes in policy are an unremarkable feature of government. What matters most, it seems, is the packaging.

That is one of the reasons it is calling this the Australia Card. It is a phoney bit of packaging. It is an ID card, and let us not pretend otherwise. But will it work? Would an ID card be effective in combating welfare fraud? Would an ID card facilitate the collection of taxes? Would an ID card control illegal immigration? Would an ID card be cost effective under the system this Government is introducing? Would personal privacy be safeguarded under this ID arrangement? What did the Joint Select Committee on an Australia Card find? The majority of members of this bipartisan Committee concluded that the ID card proposal failed on all those tests that I have just outlined. On not one of them would it pass. In welfare fraud, for example, the greatest fraud-99.4 per cent, it was found-is a deliberate provision of false information and failure to report changed circumstances rather than through false identities and names. So 99.4 per cent of social security fraud is not directly open to contest by this ID card.

Five Auditor-General reports and the House of Representatives Standing Committee on Expenditure have all made it clear that in the tax area the ID card is of minimal import compared with the proper function of existing arrangements within the Australian Taxation Office. All these reports have made it clear that the administration of the Tax Office is costing the community dearly. The Expenditure Committee said:

. . . taxation revenue losses through non-detection of total taxpayer incomes could conceivably amount to several billion dollars each year . . . In large measure it can simply be attributed to Australian Tax Office's internal inadequacies.

The Australia Card will not correct the internal inadequacies of the Tax Office. Not even the greatest advocates for this ID card on the Government side can pretend that. The reality is that the Tax Office cannot handle at present the information which is or should be available to it-that is the essential element.


Senator Messner —Hear, hear!


Senator MICHAEL BAUME —I am glad to have Senator Messner's support because he is only too well aware of the inadequate handling by the Tax Office revealed in many reports. We have had a taxing problem, and that has been referred to repeatedly in this debate.

I commend to honourable senators an article in the Age of 2 September about why the United States rejected the sort of ID card that this Government wants to introduce. The article is by Tracey Westen, an assistant professor of communications law and policy at the Annenberg School of Communications of the University of Southern California. It creates a situation which shows quite clearly what can so easily happen once this kind of central computer information bank is introduced. I will not read the article but I will mention this: In it Tracey Westen points out that the greatest supporter of the national ID system, in his argument in favour of it in the United States `does little to dispel the fear that error, fraud, tampering and deliberate abuse could trigger rampant invasions of liberty and privacy under a national ID system'. That is exactly the situation we face here. No assurances from a government whose only response to error is `So what?' will provide us with any more genuine resolution of those concerns.

What do the Australian people really think about this matter? We have heard about opinion polls and how the Government says it is backed by 72 per cent support. What bunkum. We know that, long before this legislation came into the Parliament, the Government set out on a propaganda campaign, funded of course by taxpayers. In January it spent $22,000 on a survey of attitudes of Australians to the Australia Card. Once it got the results of that survey, it went on to advertise it. It produced 664,000 pamphlets entitled `Explaining the New Australia Card', at a cost of over $17,000-my goodness, that is a familiar figure; it sounds like Paul Keating's living away from home allowance-again an example of government wastage. These were produced before there was any suggestion of legislation coming into this place. They launched a publicity campaign and then said: `Isn't it astounding; people are in favour of this'.

Let us have a look at letters to the editor in recent times. In the last three weeks I have had a quick look at the number of letters for and against the Australia Card in the Sydney Morning Herald, the Age and the Australian. There were 13 in favour and 43 against. That 3:1 balance reflects the attitudes of thinking, literate and coherent Australians to the Australia Card. It is in conflict with the propaganda, once again, being put out by the present Government. Let us look at the people whom the Government categorises as cheats, rogues and friends of tax cheats in its phoney and disgusting argument in favour of this ID card. I hope that if we have any more Government speakers on this matter they will address the issues of the ID card and its merits and not seek to attack the integrity of anyone who opposes it. There was a letter to the Bulletin in the middle of this year signed by Professors Chris Barter, Roger Brown, Lauchlan Chipman, Garth Nettheim, Geoffrey Walker, Martin Webb-all from universities around Australia. Other signatories included Peter Graham, from Griffith University, Graham Wrightson from Macquarie University, Associate Professor Jane Levine and Graham Greenleaf from the law department of the University of New South Wales, Assistant Professor Paddy O'Brien from the University of Western Australia, and Roger Clarke from the commerce department at the Australian National University.


Senator Giles —There's another one. What a bunch you have there.


Senator MICHAEL BAUME —I hear the interjection: `There's another one'. They are all crooks and thieves, according to Government senators-they are all rogues because they dare to oppose this authoritarian legislation. That is the sort of attitude we have got from Government senators. Are these people who sign these letters all crooks? Is Alan Ransom of Macquarie University, Ryde, a crook because he says that the Australia Card is a fraud? His letter states:

Is it not designed to deter cheating on taxes or income where it really counts: it is designed to make the people think the Government is doing something about it . . .

It further states:

. . . neither the Tax Office nor the Department of Social Security have effective recovery systems.

He is another, I suppose, of the crooks and frauds helping the tax cheats that the Labor Party accuses everyone of being! Mr S. M. Rubens of Brighton in Victoria wrote:

During the Nazi occupation of Holland . . . the Germans introduced ID cards, not only with photographs but also with fingerprints.

The Germans were more efficient and ruthless in enforcing their ``laws'' than Australians could ever be. Yet, I survived the German occupation of the Netherlands thanks to a forged ID card.

Peter Dawes of Rowan Street, Orange, is another crook according to the Labor Party. Ken Hay from Bendfordale in Western Australia is another. These people are from all over Australia and they are writing letters to the newspapers. There were letters from George Oughton of Homebush West, Peter Truelove of Turramurra, New South Wales, B. White of Wollongong, C. M. Coates of Queanbeyan. These people are from all over Australia and they complain, quite properly, about this card. Of course, my cousin and colleague Senator Peter Baume outlined the views of Frank Costigan and a whole host of other people, including Peter Garrett.

Let us have another look at the question of safety. `Blewett says fake cards could pass' was a heading in the Canberra Times on 19 November. What is the security involved with this card? The article states:

A forged Australia Card might not immediately be identified, The Minister for Health, Dr Blewett, admitted . . .

We have another article in the Australian Financial Review of 24 November which reads:

A fake ID card from a Times Square shop can cost: $15. With a phony birth certificate: $27.

Here we have a great sense of security about this card! We have great confidence that it will not be easily forged! We have no confidence at all that the information will remain confidential, that the information will not be improperly used by this or a successive government because of the need, apparently, for governments to keep extending their control over people in Australia. We must take a stand against this on that basis alone, apart from the fact that this is flawed legislation needing to be amended.


The ACTING DEPUTY PRESIDENT (Senator Giles) —Order! The honourable senator's time has expired.