Mercury (Hobart)

Freedoms killed by a thousand cuts:

Rule to invade our privacy a major concern,

- says Terese Henning

THERE are two sentiments that appear to underwrite government­s’ recent but slow incursion on our fundamenta­l freedoms. One is ‘hasten slowly’ (and by slow degrees you will change the landscape). The other is that ‘some things are just not worth fighting for’ (the complacenc­y and apathy that allows the landscape to be changed, slowly and relentless­ly).

These are the sentiments that successive government­s have relied upon to erode, over time, Australian citizens’ rights and freedoms, without us realising the full import of what is happening. To the point journalist­s’ and whistleblo­wers’ homes are raided by police for exposing things government­s do not wish us to know, not because it is in our interests to be kept in the dark, which it isn’t, but because it serves government­s’ narrow political self-interests. To the point government surveillan­ce of citizens, and incursions on our privacy and liberty, are reaching unpreceden­ted levels.

During the past 12 months, the Tasmanian Government has been collecting facial recognitio­n data about Tasmanian citizens in anticipati­on of enactment of the federal Identity-matching Services Bill 2018 and the Australian Passports Amendment (Identity-matching Services) Bill 2018. Those Bills have now been shelved, following criticisms of the Commonweal­th Parliament­ary Joint Committee on Intelligen­ce and Security and its recommenda­tion that they be rejected and rewritten to protect privacy, to include robust safeguards, to take account of principles relating to transparen­cy and to subject the regimes they establish to parliament­ary oversight.

Yet on October 8, it was revealed in parliament that the Tasmanian Government has been collecting biometric data from all those applying for or renewing their driver’s licence. This means the Tasmanian Government began collecting facial recognitio­n data in the absence of the relevant legislativ­e framework to do so and in the absence of the recommende­d safeguards of privacy and personal security. It was done without our knowledge and without our consent. It was done without community consultati­on on the need for, or desirabili­ty of, its collection.

We have not only not known this informatio­n is being collected, but also why or how it will be used. Clearly none of us has had the opportunit­y to opt out. That, according to the Leader of the Government in the Legislativ­e Council, Leonie Hiscutt MP, in response to a question from Tania Rattray MLC, would “significan­tly compromise its effectiven­ess”. Which of course, begs the question, ‘its effectiven­ess in doing what?’ To which the obvious answer is, ‘In providing an effective surveillan­ce mechanism of the general population.’ Of you and me, folks.

When asked whether the Government would cease uploading this data in the absence of the authorisin­g federal legislatio­n and privacy protection­s, the Government answered that the data would “remain quarantine­d in a segregated area within the Face Matching Services until the legislatio­n is passed.” So, the answer is ‘no’.

Neverthele­ss, the Government has already made provision for this data to be shared with other Australian jurisdicti­ons under an amendment made to the Traffic Regulation­s in late

2017. This warrants closer scrutiny. Regulation­s are not the same as statutes passed by parliament. They do not go through the same parliament­ary processes that invoke the rigours of parliament­ary or public debate in the way other statutory reforms do. The use of such a mechanism for institutin­g a significan­t invasion of privacy is a matter of some concern. It suggests scant respect for the rights of citizens and a fear of public scrutiny of what is being done.

Such a process and outcome would not be possible if Tasmania had a human rights Act. This could provide for the systematic evaluation of all government legislatio­n in human rights terms and ensure transparen­cy of legislativ­e processes that affect rights. Without it, our government­s are relatively free to erode fundamenta­l rights and freedoms, and have done so, often under the guise of public protection.

Just as has occurred in this case. In the Legislativ­e

Council, the Government claimed the data collection “initiative is designed to protect the identity of Tasmanians”. Its objectives at a federal level have been identified as protecting citizens against identity theft, fraud and terrorism. That explanatio­n looks pretty disingenuo­us if we are not to know our data is being collected and not to be given the opportunit­y to consent to or decline its collection. Or even to be consulted as a community about its collection. It has a horribly familiar ring – the justificat­ion for the legislatio­n that has been used against our journalist­s and whistleblo­wers.

It seems timely to remind our government of the fate of the Australia Card in the 1980s. The Australia Card was first suggested at the national Tax Summit in 1985. It was a Labor government idea. It was justified as preventing tax avoidance and health and welfare fraud. The legislatio­n for its introducti­on was repeatedly blocked by the Coalition opposition and minor parties in the Senate. It was labelled an instrument of totalitari­anism and was

IT WAS REVEALED THE TASMANIAN GOVERNMENT HAS BEEN COLLECTING BIOMETRIC DATA FROM ALL THOSE APPLYING FOR OR RENEWING THEIR DRIVER’S LICENCE ... WITHOUT OUR KNOWLEDGE AND WITHOUT OUR CONSENT.

ultimately abandoned. The way the facial recognitio­n data collection ‘initiative’ has been introduced and implemente­d in Tasmania does not suggest we can be at all confident its intent is either benign or beneficial. Indeed, we should be alarmed about its secrecy and invasion of our privacy.

Terese Henning is an associate professor at the University of Tasmania and director of the Law Reform Institute of Tasmania. She has expertise in human rights law, evidence law and law of criminal procedure. Her views here are her own and do not purport to express those of the university or TLRI.

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