Australian Greens additional comments and recommendations
Introduction
The Australian Greens support the committee recommendation.
The enormous number of problems and threats to privacy and human rights posed
by the bill require more detail and time for the Australian people and
Parliament to evaluate the proposed access card.
The issues outlined in the main committee report must be
addressed if the government is to have any hope of convincing the public that
the benefits of the access card are greater than the dangers.
However, even if these suggestions are implemented, the
Australian Greens remain opposed to this legislation as it will still enable,
for the first time, a central national database of information on all
Australians to be held by government.
In particular, the unwarranted access of police and security
agencies to the database poses a great danger to democracy and freedom.
There also remains the danger that over time the access card
will become an ID card.
The Australian Greens will support the changes implied in
the report as they would significantly reduce the threat to privacy of all
Australians posed by this legislation.
The Committee report calls for a range of matters to be
considered by the government when drafting a consolidated bill. The Australian
Greens believe that the matters raised need to be changed rather than just
considered.
Therefore the Australian Greens make the following
recommendation:
Recommendation 1
That if the access card proceeds, it be amended to ensure
that
- the provision of appropriate terminals or readers to
those agencies and providers providing benefits and services to access card
holders be included in the budget for the proposal;
- the only mandatory information displayed on the surface
of the card is the card holder's name and that other information displayed is
at the discretion of the card holder;
- the Commonwealth area of the chip store existing agency
identifiers and that these numbers are used when linking a card to a participating
agency database, rather than the access card number, removing the requirement
for agency linkage to a central database;
- the form and manner in which the register is to be kept is
set out in legislation and prohibitions such as keeping the register separate
from other data bases are expressly stated;
- the following determinations are made by way of
legislation or disallowable legislative instrument:
- what proof of identity (POI) information and documents are
needed for registration (clause 13(2));
- when applying for an access card, what 'other specified
information' or documents that the secretary deems necessary: (i) to be
satisfied of the applicant's identity, or (ii) to obtain information required
for the card or the register (clause 23(2)(b), and
- any proposals to appoint additional participating agencies
are made through legislative amendment of the principal act.
It is clear from evidence to the Committee and the character
of the proposed legislation that despite the extensive public relations effort
by the government it is in fact intended that the access card will become a
national ID card.
Ms Johnston from the Australian Privacy Foundation told the
Committee at the Sydney hearings that, 'The access card is an ID card by design
and by effect'.[1]
Evidence to the committee showed that the Access Card is far
more extensive and intrusive than Labor’s Australia Card proposal which was
rejected by the Australian people and the then Liberal opposition.
The Committee received as a submission an article by Professor
Greenleaf, the Co-Director of the Cyberspace Law and Policy Centre in the
Faculty of Law at the University of New South Wales. The article was published
in the Computer Law and Security Report. Professor Greenleaf compares the
Australia Card to the access card and concludes:
In most respects the privacy dangers of the new ID system are
worse than those of the Australia Card.[2]
The article also includes tables of comparison between the Australia
and access card. They indicate that the privacy dangers associated with 18
features of the two cards are the same, the privacy dangers associated with 14
of the features of the access card are worse than those proposed in the
Australia Card, one feature cannot compare and one feature of the access card
was better than the Australia Card proposal.[3]
The government has not been honest about its intention. It
is clear it wants a national ID card but, because of public opinion is
unwilling to say so.
As a result the legislation has been drafted with an
enormous amount of discretion invested in the Minister and the Department of
Human Services Secretary. In all there are 29 clauses that empower the Minister
or the Secretary to determine the form and structure of the access card
scheme, what information can be collected and who can use the information.[4]
We note that it is likely that this bill would be in breach
of any Bill of Rights or Human Rights Act if one was in existence in Australia
as in the United States or the UK.
Additional Issues and Recommendations
As outlined in the committee's main report there has been
little time to examine all issues of concern regarding the access card.
Outlined below are some of the additional concerns and recommendations of the
Australian Greens and which have not been covered in detail in the report.
Police and ASIO
Citizens’ rights to be free of unjustified surveillance and
attention by security agencies are the mark of a free and democratic society.
History shows that national identity cards and systems are
often associated with authoritarian regimes because they are able to be used to
control the population.
It is not surprising therefore that much concern about the
access card has been centred on police and intelligence agencies access to the
national database. This has included comments by a government backbencher that
the card failed “the Nazi Test”.[5]
It became apparent during the committee hearings that the
AFP and ASIO already enjoy extensive access to Human Services databases and
that such access would continue under the access card scheme.
It is astonishing that police and intelligence agencies
access to such an extensive national population database would only be
regulated by the individual decision of an administrative official.
While police must gain a warrant to search homes in this
case they would only need the say-so of the Secretary of the Human Services'
Department to examine extensive personal information, perhaps much more
revealing than what is in your bedroom or kitchen.
The Australian Greens believe that if the access card
proposal proceeds access to such information for use in criminal or
intelligence investigations must require at least as rigorous scrutiny as is
required for other intrusions on individual privacy and other rights by police
or intelligence agencies.
It is still unclear exactly what access State and Territory
police services would have to the national database and whether they could
require a person to produce their card. However it seems that their powers
would be similar to those of the Australian Federal Police.
Recommendation 2
That if the legislation proceeds it should be amended so
as to require ASIO, AFP and State and Territory police to obtain a warrant from
a judicial officer before accessing information held in the access card
register (database).
Concessions
Evidence to the committee suggests one-third to a half of
card holders will not be able to have their concession status visible on the
card; including young people, students and many people with disabilities. This
will mean any business and government agency that wishes to issue a concession-priced
service will need card readers.
Evidence to the committee showed that the impact on
concession eligibility and the practical use of concessions have not been
properly assessed. The government was unable to explain exactly how many card
readers would need to be issued to, or purchased by, businesses and State
government and other federal government agencies.[6]
We still do not know what impact this will have on the willingness of businesses
and services to continue to offer concessions. We still do not have information
about the impact of this proposal on the workability of concessions in a range
of settings, including public transport and commercial outlets, such as cinemas.
The Australian Greens are concerned that additional burdens
on business and users will reduce the availability and use of concessions.
Young people
The Australian Greens welcome the acceptance by the
government that young peoples' access to medical services should not be further
restricted by the introduction of the access card. We share the concerns of the
Australian Medical Association about the detrimental impact of such a
restriction.[7]
But we are waiting to see amendments to the legislation to
ensure a young person does not require parental permission to obtain a card, as
operates now with Medicare, before being satisfied that the government is not
using the access card to prosecute a conservative moral agenda.
How children and young people will interact with the card
still seems extremely undefined. Evidence to the
committee by the Secretary of DHS revealed the department may be considering an
additional card especially for young people. To our knowledge this is the first
time this had been raised in public.
Blind and vision impaired
There is a range of concerns relating to vulnerable groups
of people and those with special needs that have not been addressed by the
government in the design of the access card.
In particular, those who are blind and vision impaired would
be significantly disadvantaged by the current design of the card, which is not
distinguishable from other cards.
The Australian Greens support the following recommendation
of Blind Citizens Australia who gave evidence to the inquiry:
[That] [t]he access card be distinct in its size, shape, tactile
and visual appearance to enable people who are blind or vision impaired to
distinguish it from the mass of cards people who are blind or vision impaired
use in their daily lives. These specific needs for the blind and vision
impaired community should be commonly embedded features applied to all cards.[8]
Recommendation 3
That if the access card proceeds it should be distinct in
its size, shape, tactile and visual appearance to enable people who are blind
or vision impaired to distinguish it from the mass of cards people who are
blind or vision impaired use in their daily lives
Emergency Medical Information
The government has attempted to sell the access card to the
public by extolling the benefits of the cardholder's 'part of the chip'. One of
the uses for this part of the chip could be to hold medical information on the
person which could be used in an emergency.
It is clear, however, from evidence to the Committee that
there are large problems and health dangers from promoting the card as a source
of emergency medical information.
There are concerns that such information would not be a
reliable substitute for existing practices of assessing the patient and
accessing patient records. Doctors could not rely on the information as it may
have been altered by a patient or not accredited in the same way as other
information.
Currently a major source of emergency medical information is
provided through the issuing of emergency emblems or bracelets and accessing a
national register maintained by the not-for profit Australian Medic Alert
Foundation. Over 260,000 Australians currently have important medical
information held by Medic Alert which is accessible to health professionals via
a 24-hour hotline.
Evidence to the Committee suggests that the access card,
while not being able to replace the service supplied by Medic Alert, could
undermine the viability of the Medic Alert service and lead to a reduction in
reliable information available to medical professionals in an emergency. In the
words of Mr Bray, Australian Medic Alert Foundation, in evidence to the
Committee, '[w]ithout authentication, the health alert on the card can be so
misleading that it can be dangerous'.[9]
Recommendation 4
That emergency health information not be stored on the
card.
Copying the Card
The bill makes it an offence to copy information on the
surface of the card, but not the information on the chip or in the database.
This is a significant omission, particularly given the admission by the
Secretary of DHS during evidence to the Committee that a deliberate decision
was made to omit such an offence.
If the access card proposal proceeds, the Australian Greens
believe that it should also be an offence to copy information on the chip or in
the database.
Graham Greenleaf, Australia's proposed ID card:
still quacking like a duck, Science Direct, Computer Law & Security
Report, Elsevier Ltd 2007, p. 166, provided in Submission 43a.
Recommendation 5
That if the legislation proceeds it should be amended to
include an offence prohibiting the unauthorised copying of information on the
chip or in the database.
Keeping of scanned documents
The Committee heard from several witnesses about their
concerns about the storing of proof of identity documents in the central
database.
The Australian Privacy Foundation in its submission to the
Department of Human Services on 12 January 2007 writes that, 'the
copies of so-called "proof of identity" documents represent the raw
materials needed for identity theft'.
The Committee heard how this would make access to the
database more appealing for people seeking to engage in identity theft and that
if such people did gain access to the central database the carrying out of
identity theft would be made much easier because of the presence of identity
documents.
The Australian Greens do not support the storing of scanned
copies of proof of identity document in the central database and therefore make
the following recommendation:
Recommendation 6
That if the legislation proceeds it should be amended to
remove any capacity for scanned proof of identity documents to the kept and
stored in the central database.
Alleged Financial Savings
A number of wildly diverging claims have been made by
proponents of the access card for the savings to government revenue and the
reduction in fraud that might be possible as a result of the scheme.
While it is impossible to properly assess these claims, not
least because of the refusal of the government to release its business case for
the card, it is clear that substantial arguments can be made that the card
could also increase fraud and identity theft.
The Australian Privacy Foundation in evidence to the
committee stated that the Access Card 'is a solution looking for a problem. I
would argue that is not a good enough reason to spend $1.1 billion in an
almighty hurry or to put Australians at increased risk of identity theft'.[10]
It is still unclear from evidence to the Committee to what
degree claims for a reduction in fraud are based on the current use of
concessions by out-of-time or underage ID as opposed to large scale defrauding
of the Commonwealth.
Evidence to the committee highlighted the threat of increased
identity theft and the possibility that the development of a single form of
identity could facilitate identity fraud as much as reduce it.
It is clear that all systems are incapable of being totally
secure from hacking or fraud. The Australian people deserve to know that the
system will be as secure as it can be.
Yet evidence to the committee from the Defence Signals
Directorate who will be advising on the security of the project has said they
are unable to assess the security of the card because the project is too
undeveloped. [11]
Parliament should not be expected to sign off the creation
of the access card with the issues of fraud and security unresolved.
Conclusion
The Greens remain opposed to the access card proposal and
this legislation.
The access card must be opposed for the same reasons John Howard
gave for opposing the Australia Card in 1987 when he said:
... so we’ve come down against the present ID card, for three
fundamental reasons: the first is the enormous invasion of privacy, the second
is that the savings and the advantages of it are not great, and thirdly and most
importantly, the cost of it...
The access card proposal is so ridden with problems and
threats to privacy that there are no doubt improvements can be made.[12]
The Australian Greens will seek to move amendments to do this.
However the fundamental core of the proposal, a universal
card and a national population database, so threatens Australian’s human rights
that it must be rejected.
Senator Kerry Nettle
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