In early October, The Examiner journalists Rob Inglis and Matt Dennien revealed that young Tasmanians' biometric data was being segregated for intended use in a national facial recognition database. This is happening quietly, without the consent of young people, without community consultation or parliamentary debate.
Last week the nation's top security committee, the Joint Committee on Intelligence and Security, soundly rejected the proposed legal framework to support the national biometrics regime. This was because of the regime's lack of "robust safeguards" for "privacy, transparency [and] parliamentary oversight", provisions for "annual reporting on the use of the identity-matching services" by government and business, or any legally binding "participation agreements" to ensure all the different parties accessing our facial data would protect our rights.
The collapse of the proposed national facial record-sharing regime raised alarm in the Tasmanian Parliament where MLCs demanded the government explain why it is already collecting data for it. Direct questions were also asked about what community consultation there had been, and what laws were in place to authorise the collection of data and protect against its misuse. Government responses were anything but direct, largely evaded the questions and told only part of what happened between 2017 and now.
What actually occurred was that an intergovernmental agreement was made in 2017 to share Tasmania's facial data with other states without consulting the state's public. The agreement is, as the government selectively explained to Parliament, designed to protect against data fraud - but its very opening terms explain it also commits to share data for "law enforcement, national security, road safety, community safety and service delivery outcomes" - a much broader and more policing role than the government admitted to the Parliament.
As the Australian Human Rights Council has observed, this form of national database in fact appears to contemplate intrusive surveillance of persons (or, indeed, of the community at large), before any crime has been committed, and indeed potentially before there is any reason to believe that a particular crime will be committed.
After this wide-ranging data-sharing commitment was made, the state government simply issued a press release (hardly a 'public consultation'), and set about amending our motor vehicle regulations (not privacy laws). No parliamentary committee was established or asked to consider the legal, security, civil rights or other risks of the commitment. No legislation was tabled as it was in other jurisdictions. Regulations are not the same as considered parliamentary legislation, and given their obscurity in this case it is unlikely much attention was given to them at all.
Given the nature and risks of what was being proposed, Tasmanians might have expected a much more involved parliamentary form of review. That is not least because of its very real potential to be used for mass or blanket community surveillance, something persistently raised by experts in the Joint Security and Intelligence Committee, but directly denied by the Tasmanian Government to the Parliament.
Assurances facial data won't be used for blanket surveillance are largely policy-based. As highlighted in the national security report, there might not presently be an intent to do so but "the broad power [in the proposed regime] could potentially facilitate such a use". Indeed, a trial of facial recognition was already used for crowd surveillance in Queensland this year, when sports fans were surveilled in a joint venture between police and the stadium. Governments at both levels assured the national Joint Security and Intelligence Committee the data-sharing regime could not be used for this because of strict privacy laws in each jurisdiction. The problem in our state is that Tasmania's laws have a designed loophole - they only apply when the data collection or use isn't 'authorised' by another law, or say, quietly amended motor vehicle regulation.
Most worrying perhaps is the final answer to parliamentary questions made by the Premier himself on behalf of the government. When asked whether Tasmanians would have a choice to include their facial data in the national regime he replied: "This initiative is designed to protect the identity of Tasmanians and the provision of an option to opt out will significantly compromise its effectiveness."
The reality is this is a regime to share - rather than protect - the identity of Tasmanians with other states, and institutions (including banks and telcos). The notion that we must deprive people of privacy to protect their privacy is the language of a very different type of state than we consider ourselves to be part of. The notion that such a deprivation can only occur without citizens' consent is similarly out of character with a liberal democracy.
Effectiveness is not a yardstick of legitimacy - legal, social or otherwise. Especially when it comes to security and police powers exercised by a state. In a liberal democracy, it is the people who are supposed to watch and scrutinise the government, not the other way around.
- Dr Brendan Gogarty is a constitutional lawyer, a senior lecturer in law at the University of Tasmania and the Tasmanian convenor of the Australian Association of Constitutional Law.