Senators Canavan and Rennick's Additional Comments

1.1We support the comments made by other Opposition senators and offer these further comments.

The Government's Digital ID framework is not really voluntary

1.2The Government claims that the use of a Digital ID would remain voluntary under its scheme. However, section 74(4) of the Bill provides the Regulator with the power to allow businesses to require the use of a Digital ID if it is "appropriate to do so". While the Bill seeks to provide some examples of where a Digital ID may be required to be mandatory, there is no limitation on the Regulator's powers but the vague and open-ended requirement for a mandatory requirement to be "appropriate to do so."

1.3In effect, the Government's Bill provides no protection against the creeping expansion of Digital ID requirements under the Regulator's powers. If the Government is serious about claiming that its Digital ID scheme is "voluntary" it is not clear why it cannot limit exceptions to its voluntary standard to a narrow, prescribed list of circumstances.

1.4In addition, even for those businesses that do not receive an exemption, the Bill provides no requirement for an organisation to provide non-digital ID services on a similar basis.For example, a bank could very easily make it very difficult for someone that wants to use traditional identification documents to open account by making people wait weeks for an appointment, or through a variety of other methods. There are no protections in the Bill that would stop a business just making life hard for its customers that choose a non-Digital ID option.

1.5The Bill correctly prevents Commonwealth Government agencies from seeking an exemption to the requirement for the use of Digital IDs to be voluntary. But again, there is no obligation on Government agencies to provide access to those not using Digital IDs on an equal basis. Further, State or Territory Government agencies are not prevented from seeking an exemption from the voluntary requirements. It is not clear why this restriction would not apply to State and Territory Governments just as it does for Commonwealth Government agencies.

1.6In evidence given to the Committee at a public hearing in Canberra on 9 February 2024, Mr Chris Taylor representing the National Australia Bank (NAB) and Mr Brad Carr, representing the Australian Banking Association (ABA), were both unable to give any level of assurance that they would not seek an exemption under section 74 of the bill.[1]

1.7Furthermore, on questioning about ministerial powers to grant an exemption, or the grounds upon which the digital ID regulator could grant an exemption, the NAB and the ABA agreed that there needed to be “greater clarity in the bill to carefully articulate, probably quite narrowly, the circumstances under which section 74 could be applied.”[2]

1.8Ms Shohini Sengupta, from the UNSW Allens Hub for Technology, also agreed that exemptions would need to be very tightly defined against an extremely narrow set of exemptions.[3]

1.9Ms Sengupta stated that the bill could be ‘fixed’ by including, “Narrower safety and good legislative guardrails, executive guardrails, and ensuring that the purposes for which data is being collected is as narrow as possible and should have parliamentary supervision, judicial supervision, and the data retention and consent framework that we were just speaking about.”[4]

Consistency with the Privacy Act

1.10In its submission, the New South Wales Council of Civil Liberties raised serious concerns about the lack of consistency between this bill and the Privacy Act 1988.They called for a new privacy regime to be enacted via an amendment to the Privacy Act 1988 before this Bill is passed.[5]

1.11This was supported by Ms Elizabeth O’Shea, Chair, Digital Rights Watch, in giving evidence to the committee, who said people have a right to feel confident that their data would not be used for profiling, nor that consent should be a permissible reason to use that biometric information. She also stated that there must be a right of redress for individuals who might be harmed as a result of a breach or some kind of misuse of personal information under the scheme and that the issue of redress needs to be incorporated in any proposed amendments to the Privacy Act.[6]

Senator the Hon Matt Canavan Senator Gerard Rennick

LNP Senator for QueenslandLNP Senator for Queensland

Footnotes

[1]Mr Christopher Taylor, Australian Banking Association and Mr Brad Carr, National Australia Bank, Committee Hansard, 9 February 2024, p. 5–6.

[2]Mr Chris Taylor, ABA and Mr Brad Carr, National Australia Bank, Committee Hansard, 9 February 2024, p. 7.

[3]Ms Shohini Sengupta, PhD candidate, UNSW, UNSW Allens Hub for Technology, Committee Hansard, 9 February 2024, p. 13.

[4]Ms Shohini Sengupta, PhD candidate, UNSW, UNSW Allens Hub for Technology, Committee Hansard, 9 February 2024, p. 13.

[5]New South Wales Council for Civil Liberties, Submission 21, p. 9.

[6]Ms Elizabeth O’Shea, Chair, Digital Rights Watch, Committee Hansard, 9 February 2024, pp.16–18.