Australia: Millions of identification checks are unlawful

Because the Albanese government was in a hurry to have laws passed in order to support the identification ID verification service, it is possible that hundreds of millions of identification checks carried out by the federal government’s ID verification service were carried out unlawfully.

Businesses and government agencies, such credit card firms and utility companies, employ identity verification services to prevent fraudulent transactions and protect their customers’ personal information from being stolen.

After the joint committee on intelligence & security advised that the legislation be redrafted because to concerns that there were insufficient privacy safeguards for the idea, the former Morrison government in 2019 decided to reject legislation that would have allowed the identity verification service to operate.

Nevertheless, the service started providing its goods and services, and now, after four years, the government of Alban has successfully pushed new legislation through the House of Representatives. The Senate is currently looking at the matter of identification.

According to witnesses who testified during an investigation being conducted by the Senate on Monday, a significant portion of the rush was caused by the fact that verification services hooking up the ID systems of the states and territories to enterprises carrying out ID checks appeared to have been functioning without a statutory framework. Because of this, they would be illegal.

David Shoebridge, a senator for the Green Party, posed this question to Lizzie O’Shea, the chair of Digital Rights Watch: “Is the rush with which the legislation is being pushed through parliament being done so in order to protect the government from the unlawful practice of the service?”

“I think there’s a real question about the legality of the scheme, and the haste is about protecting the government from liability,” O’Shea said. “I think there’s a real question about the legality of the scheme.”

Just in the year 2022, the Document Verification Service was utilized more than 140 million times by 2,700 different organizations in the public and private sectors. During the most recent fiscal year, about 2.6 million transactions were carried out by government entities using the Facial Verification Service.

In a contribution to the inquiry, senior lawyers Kieran Pender and David Mejia-Canales from the Human Rights Law Centre stated that there was no apparent federal legislative foundation for either method.

“It is incredible that the Australian government appears to be presently utilizing identity-verification services on a widespread scale without a lawful basis. This is a shocking development. And it is all the more astonishing that the Australian government would aim to hurry through such significant legislation with minimal opportunity for parliamentary scrutiny given the current state of affairs.”

Shoebridge questioned Tara Inverarity, the first assistant secretary for the Attorney General’s Department, on whether the system had been working in an unlawful manner to this point. In response, Ms. Inverarity stated that although she could not comment on legal advice, she could say that it was “highly desirable” for a legislative framework to be in place.

“We think there are extremely good reasons why the services that are being provided right now should have appropriate legislative authority that provides parameters within which the services can be used that have been set by the parliament.”

Shoebridge stated that it appeared as though the Act was hurried, not to defend individuals’ privacy and data, but rather to protect the government from legal action.

The Act, according to a representative for the Attorney General’s Office, granted unambiguous legislative authority and privacy safeguards to the services.

Concerns were raised in multiple comments to the inquiry that the bill did not effectively address privacy issues, and it was questioned why the bill was being brought and passed before the amendment of the Privacy Act, which will not reach parliament until at the earliest, next year.

“We have concerns about moving forward with the current bills [prior to the revisions of the Privacy Act]. “We would say the better position would be to have all of those reforms dealt with at the same time so that we can have a harmonised position [on privacy],” the Australian Human Rights Commissioner, Lorraine Finlay, told the committee on Monday. Finlay was speaking to the committee on behalf of the Australian Human Rights Commission.

The proposed piece of legislation that was considered under the previous Morrison administration would have enabled one-to-one facial identity matching between driver’s licenses and other forms of picture identification. It would also enable law enforcement to do one-to-many searches, which would go through the entire collection of IDs for a certain individual, even if that individual is unknown to the authorities.

The one-to-many search is now only available to law enforcement agencies that are required to look for people who are either undercover or in witness protection as a result of the new laws. This is done to ensure that the individuals’ previous identification records can be cleared.

In its submission, Australia Law Council stated that while it welcomed the restrictions, it remained worried about the use of alternative facial recognition services by law enforcement. These services, such as Clearview AI, would not be governed by the proposed bill and lack their own statutory framework. The Law Council of Australia stated that it supported the restrictions.

The deadline for the committee’s report to the parliament is set for November 9th.

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