Parliamentary Committee Releases Report on Commonwealth Identity-Matching Bills

Wednesday 30 October 2019 @ 9.44 a.m. | Legal Research | Immigration

On 2 August 2019, the Parliamentary Joint Committee on Intelligence and Security (“the Committee”) commenced its inquiry into the Identity-matching Services Bill 2019 (Cth) (“the IMS Bill”) and the Australian Passports Amendment (Identity-matching Services) Bill 2019 (Cth) (“the Passports Amendment Bill”). Submissions from the public were closed on 6 September 2019. On 24 October 2019, the Committee tabled its final report.

Both the IMS Bill and the Passports Amendment Bill are re-introduced bills. The previous Identity-matching Services Bill 2018 (Cth) and the Australian Passports Amendment (Identity-matching services) Bill 2018 (Cth) were introduced into the House of Representatives on 7 February 2018. Both bills were also referred to the Committee for review on 2 March 2018. However, on 11 April 2018 both bills lapsed as Parliament was prorogued. The Identity-matching Services Bill 2018 (Cth) was discussed in a previous TimeBase article.

The 2019 Bills

On 31 July 2019, both the IMS Bill and the Passports Amendment Bill were introduced into the House of Representatives by Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs David Coleman.

The IMS Bill aims to facilitate the automated exchange of identification information between the Commonwealth and state and territory governments. This aim was pursuant to the objectives of the Intergovernmental Agreement on Identity Matching Services (“the IGA”) as agreed by the Council of Australian Governments on 5 October 2017. The IGA was discussed in a previous TimeBase article.

The Passports Amendment Bill seeks to amend the Australian Passports Act 2005 (Cth) (“the Passports Act”) to provide a legal basis for the Minister for Foreign Affairs (“the Foreign Minister”) to make Australian travel document data available for the identity-matching services agreed to under the IGA.

Both bills are yet to pass the House of Representatives.

The Committee’s Report

The Committee’s final report included recommendations for both bills to be either redrafted or amended to provide for better clarity and procedural fairness.

The Committee noted its general support for the rationale behind both the bills and the national cooperative measures that aim to target identity crime and national security threats. However, the Committee raised concerns in regards to the lack of detail regarding the framework of the identity-matching services in the IMS Bill. The Committee stated in paragraph 5.2:

“[A] citizen should be able to read a piece of legislation and know what that legislation authorises and what rights and responsibilities the citizen has in relation to that legislation. This is especially important in the case of the IMS Bill which has the potential to affect the majority of the Australian population. It is clear that the IMS Bill does not inform the citizen reader in this way.”

Furthermore, the Committee found that most submissions received raised concerns in relation to privacy of information under the IMS Bill. The IMS Bill only provides privacy safeguards for local government and non-government entities to use the identity-matching services. Whilst the IGA also provided for additional privacy protections through the Face Matching Participation Agreement (“the Participation Agreement”) and the Access Policies, the Office of the Australian Information Commissions (“the OIAC”) argued that the IMS Bill should be the primary source of privacy protection measures.

Therefore, under the first recommendation of the report:

“The Committee recommends that the Identity-matching Services Bill 2019 be re-drafted taking into account the following principles:

  • the regime should be built around privacy, transparency and subject to robust safeguards,
  • the regime should be subject to Parliamentary oversight and reasonable, proportionate and transparent functionality,
  • the regime should be one that requires annual reporting on the use of the identity-matching services, and
  • the primary legislation should specifically require that there is a Participation Agreement that sets out the obligations of all parties participating in the identity-matching services in detail.”

The Passports Amendment Bill proposes an amendment in the Passports Act which will allow the Foreign Minister to arrange for computer programs to make decisions and exercise powers that the Foreign Minister would normally do under the purposes of the Passports Act. The Committee received submissions expressing concerns around this proposed amendment.

The Australian Lawyers for Human Rights argued that this amendment does not take into account the discretionary power of the Foreign Minister and does not provide for allowing for a hearing under the appropriate circumstance or specify how a challenge could be submitted in case of an error. The Joint Council for Civil Liberties also expressed concerns over incorrect and unfair decisions and lack of procedural fairness where a computer replaces a human decision maker.

Whilst the Committee noted these concerns, it also acknowledged that the Department of Foreign Affairs and Trade has stated that decisions can only be made under this system when they produce favourable or neutral outcomes. However, this sentiment was not found within the Passports Amendment Bill or within its explanatory memorandum. Hence, under the third recommendation of the report, the Committee proposes that this be made explicit in the Passports Amendment Bill.

The Committee additionally recommended that at the implementation of recommendations 1 and 3, the revised versions of the bills be referred to the Committee for further review.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

Australian Passports Amendment (Identity-matching Services) Bill 2019 (Cth) and explanatory material, available from TimeBase's LawOne service

Identity-matching Services Bill 2019 (Cth) and explanatory material, available from TimeBase's LawOne service

Intergovernmental Agreement on Identity Matching Services - 5 October 2017 (Council of Australian Governments)

Government's surveillance bill rejected by security and intelligence committee (Rob Harris, Sydney Morning Herald, 24 October 2019)

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