Human Rights of Millions Threatened By Turnbull Government Identity Matching Bills

March 21, 2018

In a submission to the Federal Parliamentary Joint Committee on Intelligence and Security, Australian Lawyers for Human Rights (ALHR) has expressed serious concerns regarding the provisions of the proposed Identity-matching Services Bill 2018 and the Australian Passports Amendment (Identity- matching Services) Bill 2018.

ALHR’s Acting President, Kerry Weste said, “We are shocked that the time frame for considering these Bills has been particularly short and fails to allow for adequate public consultation on legislation that has the potential to impact the human rights of all Australians.”

“The Bills’ own explanatory memoranda acknowledge the measures may be in breach of several of Australia’s obligations under the International Covenant of Civil and Political Rights (ICCPR).”

“ALHR’s concern with the Identity-matching Services Bill 2018 is that substantial infringements upon individuals’ privacy rights are being given away by government in the name of security, but at the same time a door is being left open for those same privacy infringements to be ‘monetised’ for commercial purposes.”

“This calls into question the constitutional basis of the legislation, and demonstrates that its impact upon the human right to privacy is disproportionate. Further, despite references in the Identity-matching Services Bill 2018 to the application of the Australian Privacy Principles, in our view, the Bill gives rise to serious misgivings regarding the purposes for which identity matching can be used, who can access the information, how they will keep the identity information they hold about individuals secure, and whether ‘consent’ from individuals involved will effectively be obtained by coercion.”

ALHR is increasingly concerned by the rapidly growing ability of Ministers and all parts of government to delegate decisions to computer programmes to assist in decisions on day to day matters, even including important issues such as risk assessments of refugee claims.

Weste continued, “Our concern in relation to the Australian Passports Amendment (Identity-matching Services) Bill 2018 is that a distinction needs to be drawn between the Minister using a computer programme to assist him or her in making a decision (which might be appropriate), and the Minister leaving the decision entirely to the computer programme. The latter in our view arguably amounts to an ultra vires attempt to delegate a discretion, because surely a discretion can only be delegated to a human being themselves capable of exercising real and genuine consideration of an issue.”

“A computer is not capable of adding extrinsic facts to moderate the information it receives. It cannot take account of community values and expectations, considerations of fairness or common sense. Computer programmes and algorithms will however reflect the intrinsic social biases of the programmers and are not necessarily as neutral as claimed. A risk of resultant incorrect, unfair or arbitrary decisions is therefore very real.”

“Moreover computer programmes are not coded by persons who understand how to interpret the laws and may fail to incorporate the common law presumptions that underlie legislation,” said Weste.

“It is a fundamental aspect of the Australian Privacy Principles that individuals should know the reason for collection of their personal information and that the information should be used only for that particular purpose or purposes.”

“While ALHR does not disagree with the aim of allowing identity-matching services to be used by government, such services must be surrounded by safeguards and it is not clear that sufficient safeguards have been adopted in these Bills.”

“The Australian parliament should properly abide by its binding obligations to the international community in accordance with the seven core international human rights treaties and conventions that it has signed and ratified. Any legislation which impinges upon human rights must be narrowly framed, proportionate to the harm it addresses, and provide an appropriate contextual response which minimises the overall impact upon all human rights. ALHR is concerned that the Bills do not strike the right balance.”

“ALHR is concerned that the Bills will severely impact on the privacy and other human rights of Australian individuals and is particularly concerned about the use of biometric data for commercial purposes and the attempts to divorce Ministerial decision-making from human control.”

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Read ALHR’s submission  to the Parliamentary Joint Committee on Intelligence and Security here.