Freedoms killed by a thousand cuts:
Rule to invade our privacy a major concern,
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.