Privacy rights are infringed and computers are making consequential decisions on their own
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Australian Lawyers for Human Rights (ALHR) is sounding the alarm on two proposed laws that underpin a new law enforcement information-sharing push and the federal government’s new facial biometrics matching scheme.
The organisation is shocked about the time frame to scrutinise the “Identity-matching Services Bill 2018” and the “Australian Passports Amendment (Identity-matching Services) Bill 2018,” said Kerry Weste, ALHR’s acting president. This is particularly unsettling because the bills are short and the time period allotted “fails to allow for adequate public consultation” on laws that have the potential to impact human rights of all Australians,” she said.
The organisation pointed out that the explanatory memoranda of the bills acknowledge that the proposed laws may be in breach of several of Australia’s obligations under the “International Covenant of Civil and Political Rights” (ICCPR).
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“ALHR’s concern with the ‘Identity-matching Services Bill 2018’ is that substantial infringements upon individuals’ privacy rights are being given away by government in the name of security, but at the same time a door is being left open for those same privacy infringements to be ‘monetised’ for commercial purposes,” Weste said.
“This calls into question the constitutional basis of the legislation, and demonstrates that its impact upon the human right to privacy is disproportionate. Further, despite references in the ‘Identity-matching Services Bill 2018’ to the application of the ‘Australian Privacy Principles,’ in our view, the bill gives rise to serious misgivings regarding the purposes for which identity can be used, who can access the information, how they will keep the identity information they hold about individuals secure, and whether ‘consent’ from individuals involved will effectively be obtained by coercion,” she said.
The organisation is also concerned about the rapidly growing ability of ministers and all parts of government to delegate decisions to computer programs in day-to-day decision making.
More specifically, the ALHR is concerned about computers automatically making decision even on sensitive matters. The organisation is concerned that the “Australian Passports Amendment (Identity-matching Services) Bill 2018” does not distinguish between a minister using a computer program to assist in making a decision, which might be appropriate, and a minister leaving the decision entirely to the computer program.
“The latter in our view arguably amounts to an ultra vires attempt to delegate a discretion, because surely a discretion can only be delegated to a human being themselves capable of exercising real and genuine consideration of an issue,” Weste said. “A computer is not capable of adding extrinsic facts to moderate the information it receives. It cannot take account of community values and expectations, considerations of fairness or common sense. Computer programs and algorithms will however reflect the intrinsic social biases of the programmers and are not necessarily as neutral as claimed. A risk of resultant incorrect, unfair or arbitrary decisions is therefore very real.”
Weste said that programs are not coded by persons who understand how to interpret the laws and may fail to incorporate the common law presumptions that underlie legislation.
“It is a fundamental aspect of the ‘Australian Privacy Principles’ that individuals should know the reason for collection of their personal information and that the information should be used only for that particular purpose or purposes,” she said. “While ALHR does not disagree with the aim of allowing identity-matching services to be used by government, such services must be surrounded by safeguards and it is not clear that sufficient safeguards have been adopted in these bills.”
The organisation is calling on Parliament to properly abide by binding obligations to the international community. Legislation that infringes human rights must be narrowly framed, proportionate to the harm it addresses, and provide an appropriate contextual response that minimises the overall impact on human rights.
“ALHR is concerned that the bills do not strike the right balance,” it said. “ALHR is concerned that the bills will severely impact the privacy and other human rights of Australian individuals and is particularly concerned about the use of biometric data for commercial purposes and the attempts to divorce ministerial decision-making from human control.”