Concerns have been raised about the Coalition’s facial-recognition bill, with critics saying it goes far beyond what has been agreed

This article is more than 2 years old

This article is more than 2 years old

Peter Dutton’s home affairs department has fought against proposed restrictions on a new facial-recognition system, rejecting calls for warrants and a threshold for serious offences that justify use of the technology.

At a parliamentary joint committee on intelligence and security hearing on Thursday the Law Council of Australia raised concerns that facial recognition could be used to prosecute minor crimes such as jay-walking or littering, and even allow creation of a full “social credit” system of government surveillance.

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Federal and states governments agreed to build a facial-identification and facial-verification system in October, but numerous parties including the Victorian government have warned the identity-matching services bill goes beyond what was agreed.

On Thursday the human rights commissioner Ed Santow told the hearing that before agencies get access to facial identification they should have to obtain a warrant and show the specific use for the information that justifies the “privacy infringement that is inherent” in the exercise.

Andrew Rice, the assistant secretary for identity and biometrics at home affairs, rejected the proposal, warning it would “significantly slow down” agencies that needed to make rapid decisions to respond to security threats.

Law Council witnesses noted that the Council of Australian Governments had agreed to set up facial identification for offences punishable by three years or more in prison, yet that restriction was absent from the bill.

Asked why that threshold was not included, Rice said the department had excluded it because “a number of serious offences” were punishable by shorter sentences including some forms of child exploitation.

Maria Fernandez, the deputy secretary of intelligence and capability at home affairs, claimed that facial identification would be for use of law enforcement agencies “whose sole purpose is to protect and keep citizens safe”.

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In its own written submission the home affairs department has said the systems could be used for “improving road safety through the detection and prosecution of traffic offences”, a fact twice noted by Labor senator Jenny McAllister.

Santow said it was not clear if the bill amounted to “authorisation” to access data-matching, meaning it may exclude the requirements of privacy legislation.

“The primary protections of people’s privacy ... would have to be in these bills or else we can’t be confident they will operate,” he said.

Australian Human Rights Commission (AHRC) witnesses confirmed that they understand the bill allows the home affairs minister to make subordinate legislation expanding the biometric information collected to include fingerprints and iris-scans.

The Law Council president Morry Bailes said the bill “ought not be supported” in its current form because the identity system managed by home affairs “is set up in a way that we don’t know what it’s going to do”.

Bailes agreed with shadow attorney general Mark Dreyfus’ characterisation that the bill provides a framework only “for all sorts of uses to be made on unclear basis” with unclear safeguards and decision making.

Olga Ganopolsky, the chair of the Law Council’s privacy law committee, said the bill should include mandatory breach reporting to fill the gap in coverage of the Privacy Act.

She said it was “very difficult” to see how consent to use of data could be valid given there was “no particularity” on what citizens were agreeing to and they did not have the choice to supply information when they interacted with government such as by paying local council rates.

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Bailes and Ganopolsky warned that any private entity could get access to facial verification if it was “reasonably necessary” for their purpose, which could be “absolutely anything” including for-profit companies like banks and private security firms.

Witnesses from the home affairs department noted that private entities can only get access to facial verification, giving a yes-no answer if someone’s stated identity is correct, rather than facial identification which identifies an anonymous person.

The home affairs department claimed the bill “does not authorise other agencies to participate in the services”, arguing that they would therefore need a separate legal basis for use of identity-matching services.

They rejected the Victorian government’s submission that the bill went beyond what was agreed at Coag, but Rice conceded the power to give local councils access to the systems would have to go back to Coag for approval.

Rice said that information can only be used in ways government parties agreed. If state governments refused, then potential uses in the statute are just “a nice piece of writing”, he said.

For example, the Australian Capital Territory had refused to provide information for facial identification, only for facial verification.

Fernandez claimed the bill set limits on which agencies could access facial identification, but the section includes a power for the minister to create rules that add agencies with similar functions to those listed.