The Australian Passports Amendment (Identity-matching Services) Bill 2019 (the Passports Amendment Bill) seeks to amend the Australian Passports Act 2005 to authorise the Minister for Foreign Affairs to disclose personal Australian travel document data for the purpose of participating in the identity-matching services, as agreed by COAG in the intergovernmental agreement.
Proposed section 1 of the Passports Amendment Bill inserts, after section 46(d) of the Australian Passports Act 2005, a new section 46(da) allowing that the Minister may disclose personal information for the purpose of participating in a service, specified or of a kind specified in the Minister’s determination, to share or match information relating to the identity of a person.
By making such a determination, the Minister will be able to authorise the disclosure of personal information via an identity-matching service for all the purposes of that service, rather than just for purposes already set out in other parts of section 46 or in other legislation, such as the Privacy Act 1988.
Proposed section 2 of the Passports Amendment Bill has the effect that the Minister will be able to authorise the disclosure of any relevant personal information that the Department has on record, not just information collected after the commencement of the item.
Proposed section 3 of the Passports Amendment Bill inserts, after section 56 of the Australian Passports Act 2005, a provision allowing that the Minister may arrange for the use, under the Minister’s control, of computer programs for any purposes for which the Minister may, or must, make a decision; exercise any power or comply with any obligation; or do anything else related to making a decision or exercising a power or complying with an obligation.
In addition, the Minister may make a decision in substitution if the Minister is satisfied that the decision made by the operation of the computer program is incorrect.
The Explanatory Memorandum points out that the intended decisions will be low-risk decisions that a computer can make within objective parameters. Examples of such decisions are decisions to collect personal information for processing passport applications using the Face Verification Service, and decisions to issue passports to people whose biographical data and facial images match previous passport applications.
In relation to the proposed section 46(da) expanding the Minister’s rule making powers to disclose information for particular purposes, the joint councils for civil liberties stated that rules ‘which have a significant impact on individual rights and liberties should be included in the primary legislation’ and that by leaving these decisions to ‘delegated legislation and eliminating barriers to data sharing, the level of scrutiny of these processes is reduced’.
The joint councils recommended that proposed section 46(da) be ‘amended to specify that provisions impacting individual rights and liberties should be included in the Act, not in rules determined outside the legislation’.
In relation to the concerns raised by the joint councils, the Department of Foreign Affairs and Trade (DFAT) explained that ‘the Determination is a transparent and publically available instrument. Amendments to the Determination are tabled in Parliament for a disallowable period’.
A number of submitters raised concerns around automated decision-making. The Australian Lawyers for Human Rights (ALHR) considered that ‘Section 56A is overbroad’, ‘does not distinguish discretions from other decisions’ and does not ‘provide for a hearing in appropriate circumstances, or specify how a decision can be challenged in case of error’.
Submitters raised specific concerns around the fallibility of automated decision-making. The joint councils for civil liberties argued that incorrect or unfair decisions and lack of procedural fairness are a danger when computers replace a human decision maker.
Similarly, the ALHR pointed to the possibility that ‘the computer programme might come to the wrong conclusion and that the Minister might need to reverse the programme’s decision.’ This, the ALHR argued, makes it clear that ‘the legislation itself acknowledges the fallibility of a computer programme’.
Given this possibility for fallibility, Civil Liberties Australia suggested that the Bill should be amended so that individuals ‘always have the right to request a human make a decision that affects their legal rights and obligations’.
DFAT explained that acknowledgement by the Passports Amendment Bill that automated decision-making can make an error is included to make clear, and for the avoidance of doubt, ‘that the Minister is able to substitute incorrect automated decisions made in favour of a client’.
In answer to the broad concerns around automated decision-making, DFAT stated that these concerns are ‘based on an expectation that the Department intends to use automation to make decisions that may have a negative impact on the subjects of those decisions. This is not the case’.
Additionally DFAT stated that
given the way that the [Face Verification Service], the [Face Identity Service] and the Department’s passport processing systems are designed, the Department is in practice only able to automate decisions that produce favourable or neutral outcomes for the subject. Such decisions would not negatively affect a person’s legal rights or obligations, and would thus not generate a reason to seek review.
The Committee notes that, in comparison to the evidence it received on the Identity-matching Services (IMS) Bill 2019, there were few issues raised in relation to the Passports Amendment Bill.
The Committee notes the concerns in relation to delegated legislation. The Committee has made recommendations in relation to delegated legislation contained within the IMS Bill. However, the Committee does not recommend that the Minister’s powers in proposed section 46(da) should be amended. The services that the Minister may determine participation in are limited and subject to parliamentary oversight by virtue of the Committee’s proposed amendments to the IMS Bill.
Whilst the Committee notes the concerns around automated decision making, the Department has stated that such decisions can only be made when they produce favourable or neutral outcomes for the subject. However, the Committee also notes that this is not reflected in the text of the Passports Amendment Bill or the Explanatory Memorandum. The Committee recommends that this be made clear in the Passports Amendment Bill.
The Committee recommends that the Australian Passports Amendment (Identity-matching Services) Bill 2019 be amended to ensure that automated decision making can only be used for decisions that produce favourable or neutral outcomes for the subject, and that such decisions would not negatively affect a person’s legal rights or obligations, and would not generate a reason to seek review.
The Committee notes that the Passports Amendment Bill ensures that there will be a clear legal basis for DFAT to participate fully in the identity-matching services. The Committee further notes that amendments made to the IMS Bill may have consequential effects on the Passports Amendment Bill and recommends that, following the implementation of Recommendation 3, the Passports Amendment Bill not proceed until Committee has completed its review of the revised version of the Identity-matching Services Bill 2019 (as anticipated by Recommendation 2). If, as a consequence of amendments made to the IMS Bill, further amendments are made to the Passports Amendment Bill, the Passports Amendment Bill should, in accordance with Recommendation 2, also be referred to the Committee for further review.
The Committee recommends that, following the implementation of Recommendation 3, the Passports Amendment Bill not proceed until the Committee has completed its review of the revised version of the Identity-matching Services Bill 2019 (as anticipated by Recommendation 2). If, as a consequence of amendments made to the IMS Bill, further amendments are made to the Passports Amendment Bill, the Passports Amendment Bill should, in accordance with Recommendation 2, also be referred to the Committee for further review.
Mr Andrew Hastie MP