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Tuesday, 8 February 2005
Page: 4

Senator BARTLETT (12:42 PM) —I speak on behalf of the Australian Democrats to this package of legislation to do with Australian passports. The Australian Passports Bill 2004, the Australian Passports (Application Fees) Bill 2004 and the Australian Passports (Transitionals and Consequentials) Bill 2004 are important. They update the laws covering the issuing and cancellation of passports and administrative matters relating to passports, including fees. The legislation is thus welcome.

The bills cover a number of different areas, as Senator Ludwig has just outlined. There are changes to the methods and technologies for identification in relation to passports that are aimed at combating identity fraud, which is not just the production of fraudulent documents. Identity theft is certainly an area that needs continued vigilance, with most people thinking it is more important to ensure that a passport really belongs to the person holding it. Updating the laws to enable better effectiveness in addressing identity fraud is certainly a goal that the Democrats and, I expect, all Australians are supportive of.

The key question is how you do that: what powers you give to the minister, the government or the department and whether those powers are appropriate and whether the protections in place are adequate. Certainly, some privacy questions arise that I will touch on shortly. There are issues to do with the grounds for refusal and cancellation of passports, and issues to do with the criminal offences relating to travel documents—including increasing penalties, fines and maximum terms of imprisonment in relation to those offences. There are also aspects of the bill which enable the minister to obtain various pieces of personal information for a range of purposes. The general goals of the bills are something that most people would be very supportive of. The key question—and part of the important role of the Senate is to answer this—is whether it achieves those goals in a way that is going to be as effective as possible and that ensures sufficient protections for the Australian public.

When giving a minister, or indeed anybody, power over people’s information and details, we should always ask whether those powers are necessary and whether the protections surrounding the use of those powers are adequate. This broader issue is something that has been raised in relation to this legislation because of its ability to enable biometrics to be used as part of passports in the future. As I understand it, the bill does not specifically mention biometric technology, but I think the Minister for Foreign Affairs made it clear that there is an intention that the bill will provide for the introduction of facial recognition or photo-matching technology and, potentially, other technology down the track.

It is important to emphasise—and I draw on comments which the former Privacy Commissioner, Mr Malcolm Crompton, made in an address about biometrics and privacy he gave to the Biometrics Institute Conference in Sydney—that there are strong arguments in favour of the use of biometrics from a privacy perspective, as well as strong arguments or cautions against it. What really matters is the protections surrounding it. The technology itself is not inherently bad or inherently good, as with any of the other technologies that are currently used. In many respects, at least in terms of the initial likely usage of this, it is probably not going to be particularly different from the current situation of facial or photo matching via the use of photographs that are provided—and, as anybody who has applied for a passport would know, a photograph is one of the things you have to provide. We already use biometrics in a range of areas in Australia, and some of the key considerations that are involved—and these are things that Mr Crompton flagged—are bodily privacy in the collection of biometrics, openness and choice in the collection of biometrics, the potential for data linkage and function creep, and the potential for that information to act as a universal unique identifier.

In terms of what the government or minister is likely to use the updated and clarified powers under this new legislation for, it is not particularly likely that concerns are going to be raised as part of that. But concern does need to be raised about its potential future usage. This is an important question and principle that will need to be highlighted far more specifically into the future, given that the single greatest protection for the rights and freedoms of Australians is about to be lost—the independence of the Senate. From 1 July the government will have control of the Senate. It will mean they will be able to push through any changes to legislation they like. They will be able to push through any regulations they like. Until that situation changes back again and there is some degree of independent scrutiny of what the government does in the future, then it makes it all the more vital that any powers that are given to a minister or a department have enough protections already built into the legislation to ensure that the powers cannot be misused down the track by not just this government but any future government of any political persuasion. That is why it is appropriate to raise concerns about what powers might be used for in the future, even though the current minister can give, and indeed has to some extent given, satisfactory commitments about what the powers will be used for with photo-matching technology in the immediate future.

Extra uses can be brought in in future via regulation and, as senators would know but perhaps the public does not, regulations or secondary legislation is far less adequate in terms of guaranteeing proper parliamentary and public scrutiny. Similarly, regulations cannot be overturned if the government has control of the Senate unless there is a sudden outbreak of genuine independence amongst government senators—and I will believe that when I see it. So that basic principle is one that applies not just to this bill but to every bill the Senate passes from now on. Every Senate committee will certainly need to closely examine every piece of legislation to determine not just what the government of today will use the powers contained in the legislation for but whether there are protections built into the legislation against a future government using those powers for means that may be less benign or positive.

For the record, my view is that in most respects the changes and the aims that are contained in this legislation are positive measures. Measures that reduce the chances of identity theft and identity fraud are clearly very positive. Measures that reduce the ability of criminals, terrorists or whoever to obtain false passports or misrepresent themselves as somebody else should be supported but, as I and other Democrats have repeatedly said in this chamber, we have to be very careful to make sure that, in bringing in necessary changes, we do not also put in place extra discretionary powers for a minister that will allow freedoms to be taken away in the future unless a clear justification is given.

I make those comments more as a broad statement of principle about the general need to ensure that there are checks and balances on the discretion and power of any government minister. The statements are not an attack, or anything of the sort, on this government or the current minister. They are a statement of principle about the way our system of government is meant to function. It is a system of checks and balances where no one individual will have too great a concentration of power with too little scope for independent accountability, for oversight of how those powers are used and for limitations on those powers being expanded without further scrutiny and further agreement from an independent source. That system of checks and balances is now much more at risk with the loss of the independence of the Senate that will occur shortly, and it is particularly important when we are talking about new technologies down the track. In most respects, photo matching is not a particularly new concept, although perhaps it may now be being done in a different way.

This bill also opens up the scope for other technologies down the track. One of the risks associated with biometric technology that Mr Crompton outlined, which I referred to before, is what he calls ‘function creep’. That occurs when information that is collected for one purpose is gradually used for a range of additional purposes. Because of the protections contained in the Privacy Act, function creep generally involves legislative authorisation to use information for additional purposes. The most obvious example is the vastly expanded use of the tax file number which was originally brought in for a very precise and limited purpose and is now being used for a wide range of purposes. All of those changes to the use or purpose have been authorised by subsequent laws, so I am not in any way saying that those wider usages are invalid. I simply say that once you open up legal authorisation more widely there is an innate tendency to expand things down the track. It is because of the issue of function creep that the Democrats retain some concern about the nature of this legislation, because it does provide for ministerial determination in relation to a range of details—from the technology that is to be used to whether information can be disclosed to another person.

Because of that reliance on ministerial determination, rather than the need for future legislative change, the potential for function creep is increased. It is always easier for governments—and I can very much understand why they prefer it this way—to get the general principle through in legislation and then, as changes and refinements need to be made down the track, to have the ability to make them in a much more prompt manner and, government ministers and public servants would probably argue, in a more efficient manner. If there is a need to draft changes to the laws, to put them before Senate committees and to introduce them in the parliament, it can be a lot slower. But it is also a lot safer and there is much greater protection of the freedoms of the individual and the community. In balancing the natural desire for maximum flexibility and speed, which governments always like, with the need to have adequate safeguards, checks and balances and protections for the community, I certainly believe you should always err somewhat on the side of caution without going overboard about it. Because of that prospect of ministerial determinations being made in the future, some of which will require regulations to be brought in, we do not believe that is necessarily an adequate protection against potential future misuse and future extra powers going to the government.

Certainly the area of ministerial determination I am most familiar with that of migration law. It is an enormous area of power for a minister. That ministerial discretion is virtually unlimited in some respects, with virtually no oversight of how that power is used and no opportunity for independent scrutiny. I suppose it is because of my experiences in that area—where I have seen what was originally proposed as a very minor piece of the law, to be used as a last resort or a safety net in extreme cases, over time expand to become a major aspect of the operation of some components of the migration law—that I am much more conservative about giving ministers, in any areas, further powers where they can make changes simply by exercising their discretion without adequate protections being built in. What is being proposed here, let me hasten to add, is nothing like what is in the Migration Act in terms of the scope of ministerial power and the lack of any scrutiny of what the minister does in certain areas. I simply draw on that as an example of what can happen when open-ended ministerial discretion powers are allowed to take hold without adequate scrutiny of, and accountability for, how those powers are used.

It is those two aspects that I would emphasise: firstly, down the track, what other things might those powers be used for and how adequate or otherwise will be the ability to scrutinise changes and extra uses of those powers that may occur; and, secondly, whether adequate processes are in place to scrutinise how the powers are being used. That is something that will be an ongoing task. I am sure it is something that those who have an interest in this area will continue to do: to look at how these powers are used—from a positive perspective, not just negative one. People have recognised the potential positive benefits of biometric technology for a whole range of reasons and we need to continually learn, as it is used, how it can be better used and what additional benefits can be gained from it. From that perspective as well, it is beneficial to have sufficient transparency of the monitoring of the use of technology so that people can learn from it and come up with ways of doing it better. In areas like this, where technological development is fairly rapid and the potential for a range of uses continues to grow, opportunities for input into how things might be done in the future are very important.

So, whilst the tone of my contribution has probably been focused on the negative or at least on sounding a warning, I do acknowledge the potential of this legislation—the potential benefits of biometric technology and, indeed, other technologies when they are used. As with any power, the key thing is that it is appropriately constrained and cannot be expanded without further future scrutiny and awareness and, secondly, that there is adequate oversight with how those powers are used. In those areas, I am still not convinced that the protections in this legislation are necessarily adequate, but my concern has more to do with how the technology may be used in the future than how I anticipate it will be used immediately. I think it is appropriate to put those concerns on the record. They are areas that in many ways link into the concerns that have been raised by the Democrats over a long period.

People will perhaps recall former senator Janine Haines and her concerns about the use by governments of personal information and the need for good protections about that. Her campaigning about privacy issues has been taken up and continued, particularly by Senator Stott Despoja in her exploration of a range of these issues, not least in the current Senate committee inquiry about the adequacy of the privacy regime across the board that is in place. I urge people who have concerns or views of any sort about some of the wider issues to do with the use of technology, personal information and privacy related issues to make submissions to that inquiry.

In many respects, it is the adequacy of our overarching privacy regime and privacy legislation in Australia that is the key. It needs to be made as effective as possible, balancing all the competing challenges rather than homing in on just one particular area of its usage. Despite the government having control of the Senate from 1 July, I am sure the Senate will continue through its committee process to play an invaluable role in engaging with and getting the expertise of the public about how we can do things better in a whole range of areas. The privacy regime is certainly one of those areas and that Senate committee inquiry, which was established at the end of last year, is certainly one that I would encourage people with an interest in this area to engage in.