Additional Comments by Senator David Shoebridge

1.1The majority report contains a detailed, accurate and comprehensive review of the history of this Bill and its potential impacts, and each of the recommendations point the Senate in the right direction to improve the Bill. However, both the timing and content of the Bill remains problematic.

1.2The government has yet to provide a public rationale for why this Bill must be rushed through Parliament. The digital identity scheme in question commenced in 2005, was expanded in 2017 and considered closely in a parliamentary inquiry in 2019. That 2019 review found significant privacy concerns with national digital data matching, most especially with a national facial verification database. These concerns remain alive.

1.3The most appropriate path forward is to defer this Bill until the Parliament has seen the government’s legislative response to the Privacy Act review. This would allow the existing national verification services to be placed on a more solid and evaluated privacy basis where individual rights are appropriately respected.

1.4There is a very real concern that this Bill is being so aggressively pursued by the government because it knows the existing regime is unlawful and subject to legal challenge. This became clear in the obfuscation from the government when the question was put to departmental witnesses in the inquiry as follows:

Senator SHOEBRIDGE: Why are we rushing to legislate it now? What's special about October 2023 that means we have to push this through? Is it because there's some legal advice that the department or the minister has received suggesting there are legal threats to the current arrangement? Isthat what's driving it?

Ms Inverarity: Clearly, we don't disclose legal advice. I think we've already discussed some issues that show why it is highly desirable to have legislative authority in place to guide the use of these services. TheParliamentary Joint Committee on Intelligence and Security reported in 2019. The government has now brought this bill to the parliament, and we think it's highly desirable for that legislative authority and those strong privacy protections to be in place.

Senator SHOEBRIDGE: Are the current arrangements lawful?

Ms Inverarity: The current services are being used on a daily basis.

Senator SHOEBRIDGE: Are they lawful? Are the current arrangements lawful?

Ms Inverarity: I'm not going to discuss the content of legal advice with you, and I believe that's what your question goes to.

Senator SHOEBRIDGE: There may be an argument to rush legislation through if the whole scheme's unlawful and subject to legal challenge, but you're not in a position to tell us that. Given every other agency has basically said, 'This is legislating the status quo,' it's hard to see what the rush is.

Ms Inverarity: There is no legislation to refer to as the status quo. This would be the first time that the parliament had spoken as to the appropriate parameters for the use of the services and the limits on them. In that regard, there is no legislative status quo, and that is what we are seeking to achieve.[1]

1.5If the existing identity matching services, which were used more than 140million times last year, are illegal then the Attorney-General should clearly say this to the public. That would at least be a clear rationale for the undue haste that is driving this untidy legislation.

1.6The Australian Greens are not in Parliament to shield the CommonwealthGovernment from valid legal challenges where it has breached peoples’ privacy rights. We approach these Bills with the aim of providing the highest possible privacy protections to give public confidence in a robust and important national identity verification scheme. We hope this is the goal of other parties in the Parliament.

1.7In the event this Bill proceeds, there is a higher standard for privacy protections that has been proposed by the government in its draft Digital Identification Bill2023 that should be incorporated into this Bill. There are two reasons for this. The first is that these higher protections are both appropriate and important. Second, it is important to have the greatest possible consistency in privacy law, set at the highest standard, so that our national privacy laws are readily understood and effective.

1.8A series of submissions set out the preferred approach of deferring the Bill, not least of which is the extremely helpful submission from the Human Technology Institute at the UTS. This submission proceeded to set out a hierarchy of preferred amendments to the Bill in the event it proceeded as follows:

HTI recommends that the privacy protections in the IVS Bill be strengthened to make them at least consistent with the Government’s exposure draft Digital ID Bill 2023. This could be achieved in any of the following ways, set out below in order of HTI’s preference:

(a) amend the Privacy Act in a way that implements the relevant recommendations from the AGD Privacy Review 2022, prior to the passage of the IVS Bill

(b) amend the IVS Bill to include additional privacy protections, substantially mirroring the relevant additional privacy protections in Chapter 3 of the exposure draft Digital ID Bill 2023

(c) amend cl 44 of the IVS Bill to empower the Minister to make rules to strengthen the privacy protections in the IVS Bill, with a sunset clause applicable to the IVS Bill as a whole, if the Minister fails to enact such rules within a specified period (eg. six months).[2]

1.9This is an approach the Australian Greens endorse and will seek to implement through amendments in the Senate in the event the Bill proceeds before the comprehensive privacy response is introduced into the Parliament.

1.10The majority report, quite rightly, recommends expanded oversight powers be given to the Office of the Australian Information Commissioner (OAIC). However, these powers will not be effective in the absence of the resources that are needed to use them. The OAIC is already grossly underfunded and subject to gross delays in all of its existing regulatory functions. It is not a privacy solution to simply hand them additional powers without the funding needed to make them work.

1.11Finally, I thank all the stakeholders and individuals who made submissions to the inquiry that gave us the assistance we needed to understand the issues and seek a way forward, as well as the help from the professional team in the committee secretariat.

Senator David Shoebridge

Member

Footnotes

[1]Committee Hansard, 30 October 2023, p. 43.

[2]Human Technology Institute, UTS, Submission 4, pp. 3–4.