Your ID? It's on the card

Michael Pearce SC, 14 February 2007

The Government's 'access card' will be an identity card in all but name.

If it looks like a duck, walks like a duck and quacks like a duck, you can be pretty sure it is a duck. Parliament can pass a law to say it is not a duck and can even seek to impose penalties for treating it like a duck. The duck, however, remains a duck and the law becomes, well, an ass. Like all such laws, it will be disregarded and eventually repealed.

So it is with ID cards. The Federal Government, by introducing into Parliament the newspeak-inspired Human Services (Enhanced Service Delivery) Bill 2007, has embarked on the first legislative phase of its proposal for a national ID card. The proposal is based on a number of deceptions. The first and greatest of which is that the card, styled an "access card", will not be an identity card. The Government says the card will only be used to enable holders to have access to Government services, hence the benign misnomer. Yet the Government's own propaganda for the card promotes its main virtue as being to enable more rigorous identification of benefit recipients.

This is then said to lead to a host of other positives in combating fraud, identity theft and other crime. Hints have even been dropped of a role in the war on terror. This is part of the Government's standard blancmange of rhetoric supporting its recent encroachments on civil liberties and privacy. However, instead of promoting an open public debate on whether its proposed card will have the promised benefits and whether those benefits will outweigh the disadvantages, the Government in April last year simply announced its intention to introduce the card.

The announcement was supported by a report from accountants KPMG that the Government has used to project billions of dollars of savings for the Government from such a card. However, it has been impossible to scrutinise properly the KPMG report because key parts of it have not been publicly released. Even if the savings projections are accurate, there is still a serious question of whether they justify the non-monetary costs of the card. The Government has shown no interest in a debate of this kind. Instead it released a draft exposure bill shortly before Christmas and called for public comment by January 12. Less than a month later it has introduced legislation into Parliament which takes little or no account of the public submissions on the exposure draft, which many people had sacrificed their summer holidays to make. It is clearly determined to force this legislation through without any proper public debate of the important issues.

A group whose members include the Australian Privacy Foundation and Liberty Victoria, is trying to promote the public debate the Government is seeking to dodge. It has organised public forums in Sydney and Melbourne and will continue to agitate for a proper public debate to bring out the following important issues the Government refuses to face.

First and foremost that this will be an ID card even if the legislation seeks to prohibit its use as such. The very strength of the card will be its enhanced identification integrity. This will inevitably lead to its use as an ID card and to the ultimate repeal of the legislation prohibiting such use.

Secondly, the Government cannot guarantee there will be no "function creep" - that is, the continual addition of functions to change radically the original purpose of an initiative. It cannot do that because it cannot fetter the powers of future parliaments. It can pass an act today that contains provisions imposing penalties for requiring someone to produce the card as identification or that say the card need not be carried at all times. However, it cannot guarantee that a future parliament will not repeal those provisions.

There are numerous examples of function creep through legislative amendment. For example, the Costigan report recommended in the late 1980s that the government impose an obligation to report cash transactions of $10,000 or more to combat organised crime. That modest proposal has, over 20 years of sustained function creep through legislative amendment, transmogrified into the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, whose tentacles reach into almost every area of financial activity. A Government guarantee of no function creep is worthless.

Thirdly, the Government's promise of data protection is no more credible than its guarantee that there will be no function creep. Yes, the Government can create a data protection regime by legislation and other prescription, but cannot ensure compliance. Recent history has shown how ineffectual such regimes are with data misuse scandals in the Australian Taxation Office, Centrelink, the NSW Road Traffic Authority and the Victorian Office of Police Integrity. The greater the opportunity for data misuse, the greater the temptation. By creating a national identity register, with links to various other government databases, the proposed ID card will vastly increase such opportunities. Thus the incidence and seriousness of data misuse - and the consequent loss of privacy - will inevitably increase.

Finally, the Government's propaganda almost certainly oversells the benefits of its proposed ID card. For example, it says the single card will replace 17 existing cards. In fact, most people carry only one such card - the Medicare card - and few would carry more than two or three. Why not simply add some of the enhanced identification features of the new card to the existing ones? If the Government is so sure of the billions of dollars in savings from the card, why not release the KPMG report in full and permit independent scrutiny?

One thing is certain, though. The Government will not be dissuaded from its course of introducing the ID card. There is little point in seeking to engage it in debate over the precise form of its legislation. The campaign must look beyond that to ways of frustrating its implementation. That, by the way, is what stymied the last attempt to introduce a national ID card.

This article appeared in The Age.