Photo Card Bill
The Hon. MICHAEL COSTA (Minister for Roads, Minister for Economic Reform, Minister for Ports, and Minister for the Hunter) [5.50 p.m.]: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
The purpose of this bill is to make provision for the New South Wales Photo Card Scheme.
The bill authorises the RTA to introduce a voluntary New South Wales photo card for people in the community who do not hold a drivers licence or an existing proof of age card or another form of identification such as a passport or a New South Wales photo birth card.
Many people in the community often have a need to produce some form of personal identification to secure goods and services.
Businesses and government services also rely on a photo identification document to provide assurance that the person they are dealing with is who they say they are.
The New South Wales drivers licence has gained increasing utility in the community as a photo identification document.
While the drivers licence is designed specifically to achieve driver management goals, the broad utility of the New South Wales drivers licence card as a trusted and reliable photo identification document has placed an obligation on the Government to ensure that people who are unable to obtain a drivers licence are not unfairly disadvantaged.
The photo card will benefit those people in the community who may have a need for a photo identification document but who do not currently hold a drivers licence, may not be medically fit to hold a drivers licence, may be older than 25 years of age so have not been able to obtain a Department of Gaming And Racing proof-of-age card, or who do not hold a passport or cannot obtain a New South Wales photo birth card.
The voluntary photo card will make it easier for older people and people with disabilities who require photo identification but have not had the opportunity to obtain a valid photo identification document. The card will replace the existing proof-of-age card and will contain security and design features that will assist service providers in establishing evidence that a photo card holder is at least 18 years of age.
The bill is required to enable the Roads and Traffic Authority ("RTA") to produce photo identification cards under different eligibility requirements. These include requirements that only New South Wales residents may apply for the voluntary card and that a resident may not hold both a New South Wales photo card and a New South Wales drivers licence.
The eligibility requirements and the customer enrolment and proof of identity processes used by the RTA to establish entitlement to the photo card are consistent with New South Wales and national strategies to prevent identity fraud.
The RTA will apply stringent proof of identity checks on each individual and will implement new technical capacity to ensure that the photo image management regime is of the highest integrity and security.
The bill will also enable the re-use of latest, valid photo images for the purposes of the government licensing service. Business rules will be consistent across both schemes.
The bill contains general regulation making powers in relation to the administration and development of future RTA photo or other identification services delivered on behalf of the New South Wales Government.
The bill is designed to enable the RTA to adapt the photo card to incorporate future developments in security technology that will help prevent identity fraud.
Future proofing the security and integrity of all RTA processes and systems linked to the issuing of photo cards, drivers licences and other photo licence cards, is a critical strategy to prevent criminal exploitation of weak entry points in the circular path of identity crime.
The RTA is at the forefront of national strategies to protect the integrity of these systems, which in future may include the use of biometric indicators and anti-tampering and anti-forgery technologies.
It would appear desirable that any technological solutions in these areas should be developed nationally to ensure compatibility and interoperability between jurisdictions.
In developing the New South Wales photo card, the RTA has sought a co-ordinated and co-operative national approach to maximise work being undertaken to prevent identity crimes.
The bill authorises the RTA to refuse an application for issue of a photo card in the circumstances when the RTA, forms the opinion that the applicant is not a 'fit and proper' person to hold such a card. Any future or additional grounds for refusal for an application of a photo card will be in accordance with regulations permitted under this bill.
The bill also provides the RTA with the power to cancel a photo card. Grounds for such cancellation action will be prescribed by regulation and will include fraudulent use of a photo card and misuse of a photo card.
The bill entitles the RTA to maintain a photo card register in conjunction with other information registers kept by the RTA and gives the RTA the power to correct any mistake or error or omission in the register of photo cards.
The bill provides safeguards on the release of information that will be contained in the photo card register.
Enforcement and offences constitute notable features of the bill before the house, and include requirements to produce the photo card to authorised officers. An authorised officer may seize a photo card in circumstances where the photo card is used in contravention of any provisions in this bill or any other act or law.
An authorised officer may be a police officer or a person appointed by the RTA or a person or class of person prescribed by the regulations made under this bill.
The $40 fee for the card represents costs associated with production of the card and is not based on the five-year tenure of the photo card. Given the voluntary nature of the card, there will be no concessions available. However, in the instance where an elderly holder of a New South Wales drivers licence is directed to surrender his or her drivers licence on medical or age grounds, the fee for the photo card may not apply.
It is important to note that the identity crime working group has directed the RTA to investigate the possible application of new technologies to drivers licences and other card issuance processes and to the security features on the card to prevent tampering and forgery. These may add significant additional costs to future photo cards and it is important that the RTA is able to resource these improvements.
To this end, the Government has endorsed the retention by the RTA of fees associated with the photo card. This will enable the RTA to implement any additional security features that future technology is likely to make available in the fight against identity fraud.
The new photo card will be delivered under strict identity fraud prevention guidelines. The RTA will continue its work with New South Wales Police and the New South Wales crime commission to ensure that the most secure systems and processes
Surround the issuance of photo identification documents. These measures will also ensure that individual privacy and customer acceptance and convenience issues are at the forefront of service delivery.
The photo card will provide real benefits to a large section of New South Wales residents.
I commend the bill to the House.
The Hon. MELINDA PAVEY [5.50 p.m.]: The Opposition will not oppose the bill. However, I will highlight some concerns with the bill, particularly privacy. The bill is designed to enable members of our community who previously have not had access to photo identification to obtain such identification. The Opposition is pleased that the legislation has been brought before the House. The National and the Liberals went to the last election with a policy to introduce a type of photo card for people who do not have a drivers licence, provided that privacy was guaranteed. It is pleasing to see the Government introduce a policy that was proposed initially by The Nationals and the Liberals. I was thinking about the difficulties faced by the many people who do not drive a vehicle. The Premier of this State does not have a licence because he does not drive a car. I cannot imagine what it must be like for him when he uses an airport outside of New South Wales where he may not be well known, goes up to the counter and says, "I'm flying to Sydney." The people at the counter would look at him and think, "Who is this man? Is he an actor? He looks famous, but I can't quite figure out who he is." He has presence. He practices and practices his theatrics. The legislation will be worthwhile for people like the Premier who do not have a drivers licence. I cannot imagine how difficult not being able to drive a car must be for him at times.
Reverend the Hon. Dr Gordon Moyes: What about when he wants to get a video from the Video Ezy shop?
The Hon. MELINDA PAVEY: That is right. He might want to get a video from the video shop.
Reverend the Hon. Dr Gordon Moyes: On the history of the American Civil War.
The Hon. MELINDA PAVEY: Or on any number of other things. The Premier's problem is now solved. All he has to do is go along to his local Roads and Traffic Authority [RTA] office, if he so chooses. Privacy groups have raised some concerns about the card and we respect them, but I note a press release issued yesterday by the Greens harks back to the debate of 20 years ago when the Labor Party proposed the introduction of a compulsory identity card—the Australia card—a national database of Australians' identities. The conservatives in Australia were opposed to such a card. I remember hearing a lot of passionate debate from the conservatives, pushed by people from other countries who had lived under fascism or communism and who had chosen to live in Australia. Their view, and I support the proposition, was that the Government should not control national photo identification. But the photo card proposed in the bill is not compulsory. It is for the convenience of people under the age of 18 or those do not want to drive a car, or even the Premier, who is unable to drive a car and does not have a licence. Like a lot of other people he will now be able to obtain official photo identification.
Almost 9,000 people in New South Wales do not currently hold a drivers licence, but the photo card will give them access to a photographic form of identification. It is becoming increasingly difficult for those in the community without a drivers licence to prove their identity. Some tasks, such as taking a flight, opening a bank account or posting an international package can become problematic and time consuming without identification. Without a drivers licence groups such as the aged or the disabled—or even the Premier—are disadvantaged. Other forms of identification, such as the Registry of Births, Deaths and Marriages identification card, can be difficult for non-metropolitan residents to obtain because it is available only in Sydney. Similarly, it is available only to residents who are born in New South Wales. The application for the card is completely involuntary. It is not compulsory.
Over the next three years the card will replace the RTA proof-of-age card, which is insufficient because it is available only to young people—not the Premier. The new card will be more effective and more widely available. The photo card will be available to all residents of New South Wales who are over the age of 16. The security features of the photo card will be similar to those of a New South Wales drivers licence. It will feature a hologram, watermark and magnetic strip. Also it will be adaptable to include future technologies such as biometrics. I understand that with these future security measures the card will be subject to the same privacy scrutiny as a drivers licence. Information will be kept on a separate database to ensure that it is subject to the same privacy and data protection laws as a drivers licence, which is vital to guarantee that privacy concerns are allayed.
I highlight an issue raised by the Opposition spokesman on roads, the Hon. Don Page. The Opposition is concerned that a five-year photo card will cost $40, indexed to the consumer price index. The RTA has stated that because the card is involuntary, no concession will be available. However, older members of the community concerned about this failure to offer concession rates have approached the Opposition. In this day and age the cost of living in New South Wales is growing and every dollar counts. The $40 cost is significant, although I understand that a person required to surrender his or her licence on medical or aged grounds will not be required to pay the fee. This exception does not cover disabled people who are unable to obtain a drivers licence in the first instance. I assume that the $40 fee will apply to those persons.
I will now deal with the privacy issues in the bill. The Australian Privacy Foundation has approached the Opposition with concerns surrounding privacy of the new card. They were in contact with us this afternoon because the Opposition was not aware that the bill would be debated in the upper House until today. However, I understand the shadow Minister for Roads, Don Page, has consulted with the Australian Privacy Foundation and he is aware of their concerns. We have received a detailed response from the Government about these concerns. I reiterate some of the concerns raised by the Opposition and restate the Opposition's position on these matters. I am aware that members of the crossbench, particularly the Greens, have also been approached by the Australian Privacy Foundation [APF]. Some of the foundation's concerns will be the subject of amendments that will be moved during the Committee stage.
The APF argues that the bill does not include provisions to limit information that will be held by the Roads and Traffic Authority for the purpose of issuing the card. Additionally, there is inadequate limitation upon whom information can be shared with. The APF argues that the legislation allows for a total population centralised identity system that will be run by one government agency for drivers and non-drivers over the age of 16. This is a matter of concern to the foundation because of the potential for the misuse and misappropriation of information, the risk of corruption within the RTA, and the need for increased security.
The APF has expressed concern about a number of other matters, including the fact that, over time, there will be increased pressure to collect more information about people, increased pressure to share information across government agencies, and an increase in the power of the RTA to deny a person access to a photo card and to restrict that person's ability to prove his or her identity. The foundation has also pointed out that although the photo card is voluntary, people may feel compelled to have one because of pressure on them to carry one for a number of reasons.
I reiterate the Opposition's position on the general issues of privacy and security. The bill provides a number of safeguards. Clause 15 provides safeguards in relation to security of information on the register, clause 18 provides a further safeguard dealing with the purposes for which photographs may be kept and used, clause 19 provides for circumstances in which photographs can be released, and clause 24 provides for the inappropriate use of the card. The Government has assured the Opposition that current laws, including the Privacy and Personal Information Protection Act 1998, the Commonwealth Privacy Act 1988, the Road Transport (Driver Licensing) Regulation 1999, and the Road Transport (Vehicle Registration) Regulation 1998, already limit the collection and use of data.
I have received correspondence from the Minister's office stating that Privacy New South Wales was consulted during the preparation of the bill and has no concerns about the privacy aspects of it. The Opposition believes that that is a very important assurance that the legislation safeguards against the fraudulent use or misuse of the photo card for other than required purposes. The legislation makes it an offence to obtain or attempt to obtain a photo card by making a false statement, to unlawfully possess a card, to manufacture false cards, to improperly use a card, and to alter or tamper with a card. The Opposition is concerned about the effect of clause 7, which deals with the grounds for refusal to issue a photo card. Clause 7 (3) states that the authority may refuse to issue a photo card on such grounds as may be prescribed by the regulations. This is another example of the overuse of regulation by this Government.
I am becoming increasingly suspicious, and am very concerned, about a government that likes to include numerous ambiguities in regulations because they are not subject to the same scrutiny in Parliament as clauses of a bill. Regulations are an unknown factor and are difficult to analyse. As always, I will carefully watch for changes in regulations in relation to the refusal to issue a photo card, particularly as the photo card is directed primarily to use by elderly and disabled people. The Opposition will also maintain contact with the Australian Privacy Foundation when the regulations are enacted to find out whether implementation of the regulations results in the emergence of privacy issues. I am satisfied by assurances I have received from the acting Privacy Commissioner and staff from his office who have been involved in the drafting of the bill that privacy is not a matter of immediate concern.
The acquisition of a photo card is voluntary. I believe that the photo card will be of benefit to all people, especially elderly people and people who have a disability. During debate on the bill in the other place, the honourable member for Wagga Wagga, Mr Daryl Maguire, referred to intellectually disabled people in his electorate who regularly collect paper for recycling from his electorate office and other government buildings in Wagga Wagga. It is good to hear that a group has been able to engage in such worthwhile activity. This legislation will benefit such groups because it will facilitate easy access to government buildings. I commend the honourable member for Wagga Wagga for citing an excellent example of the practical effect of the bill and highlighting the advantages it will produce. Should members of that group or similar groups wish to avail themselves of the opportunity of photographic identity by obtaining a photo card, they can be assured that the card has the same privacy features and security measures as drivers licences.
In conclusion, I thank members of the Australian Privacy Foundation for contacting the Opposition to express their concerns and for their contribution to the effectiveness of this legislation. As I stated at the outset, the bill is being introduced for the convenience of the citizens of New South Wales. The photo card was first proposed by the Nationals-Liberal Coalition. I congratulate the Government on adopting the Coalition's policy. It makes me happy that the Premier will have formal identification to make his life easier, given that he does not drive.
Reverend the Hon. Dr GORDON MOYES [6.05 p.m.]: It is my pleasure to speak to the Photo Card Bill on behalf of the Christian Democratic Party. The purpose of the bill is to authorise the Roads and Traffic Authority [RTA] to introduce a New South Wales photo card for those who do not hold a drivers licence, a proof-of-age card, or other formal identification, such as a passport or a New South Wales photo birth card. I commend the underlying purpose of the bill.
Last year the Licensing and Registration (Uniform Procedures) Amendment (Photo ID) Bill was passed. That bill was aimed at improving customer service by giving an applicant for a licence the choice of reusing an existing photograph on other licences held by the RTA. That bill raised similar questions in my mind relating to the loss of privacy and the risk of forgery and corrupt conduct, although on a lower scale than this bill.
As I said in debate on the Licensing and Registration (Uniform Procedures) Amendment (Photo ID) Bill, the RTA has instituted a system that has eliminated the requirement to present a photograph in hard copy form. As many of us have experienced when applying for or renewing a drivers licence, one now need not submit a hard copy photograph. The RTA has a digital system whereby officers can take a photograph of an applicant. The image of the applicant is then stored on a database to be used by the RTA for purposes related to the issuing of licences. My understanding is that the RTA is the only government authority on a statewide basis that has the facilities and equipment necessary to take photographs on the spot. Standardisation and convenience are the hallmarks of this arrangement. In my opinion the underlying purpose of the bill is as stated in the second reading speech:
to help those in the community who have a need for a photo card ... to provide New South Wales residents who do not hold a drivers licence with a document that will assist them to establish their entitlement to rights and privileges in the community.
We can easily recount the advantages of such a system. People often need to present personal identification to secure goods and services, and this card will facilitate the identification of people who, for some reason or another, do not hold a drivers licence. The bill will enable the RTA to adapt the photo card to incorporate future developments in security technology that will help prevent identity fraud. The introduction of biometric indicators upon community consultation has been flagged in the second reading speech. Of course, such measures will mitigate, in leaps and bounds, some of the security issues we have faced to date. This is an important consideration, especially in the social climate that we live in today. On a practical and cost-effective level, it makes sense for the RTA to maintain a system that holds information about the identity of people, given its current infrastructure.
However, I have some questions about how some provisions in the bill will work. Those questions resonate in some of the concerns expressed by the Australian Privacy Foundation. First, as I said, the intent of the bill seems to be to remedy a disadvantage at which some people are placed by being ineligible for a drivers licence. However, the RTA is able to refuse an application for a photo card to be issued in circumstances where the RTA forms the opinion that the applicant is not a fit and proper person to hold such a card. The bill also provides the RTA with the power to cancel a photo card. Grounds for cancellation will be prescribed by regulation and will include fraudulent use and misuse of a photo card. Some of these factors seem to work against the intent of the bill.
People who want a photo card may effectively be banned from having one, and will be implicitly blacklisted as social outcasts. Consequently, the intent of providing equitable access to services for all people will not be upheld in its truest form. In this context, it must be kept in mind that the role of the RTA, as implied by its name, is to exercise functions connected with roads and traffic in New South Wales. Therefore, the purview of the RTA is to improve road safety, to test and license drivers, and to register and inspect vehicles. It also manages the New South Wales road network to achieve consistent travel times. Allowing the RTA to refuse a photo card on unspecified grounds would effectively make the RTA a social arbiter. Another agency connected with the RTA that is equipped with the functions, powers and capacity to determine such questions may be a more effective body. Clause 14 (2) (f) gives the RTA the power to record "such other information as the Authority may include on or otherwise as part of a Photo Card". There are no limits on which information can be placed on the database. In my opinion it does not seem necessary for the RTA to keep information other than that which is necessary to establish the person's age and/or identity.
As indicated by the Australian Privacy Commission, the bill allows for the establishment of a total population, centralised identity database. Clause 14 of the bill provides that the authority is able to maintain the register of information pertaining to photo cards on one database. Such information could be kept on the same database as that held for New South Wales drivers. Thus, it can be envisaged that one database will hold information on everyone in New South Wales—drivers and non-drivers, except those who, for some reason, have been disqualified from holding either a photo card or drivers licence.
Clause 19 is interesting. It allows the RTA to disclose photographs or any other information about cardholders held on their database to NSW Police, for any reason at all, and to the NSW Sheriff, for the purpose of any fine recovery proceedings. The only requirement is that such a release is in accordance with a protocol to be approved by the Privacy Commissioner. Whether that protocol is abided by in practice will be another issue, and how to monitor compliance with this protocol also presents a problem. Interestingly, as the Privacy Commission pointed out, the RTA can disclose information to other interstate driver licensing authorities for any reason at all. This begs the question as to why driver licensing authorities in other States and Territories should need information about people who do not drive.
Further, clause 19 allows disclosure so long as it is as provided under any other law or in accordance with regulations. It is often hard to monitor the content of regulations, as they are passed in less conspicuous circumstances than Acts. The broad range of laws that could prescribe disclosure is also difficult to monitor. This provision easily foreshadows the relative ease with which RTA officers will be able to pass on sensitive information. This is a concern for me. I am not aware that there will be a checks and balances system in relation to supervising and/or ensuring that RTA officers do not exploit the system. News of the abuse of governmental powers by government officials usually arises in less than clear circumstances.
The model poses increased risks to the personal safety of people who hold either drivers licences or the new photo cards. As I recall, the RTA has a history of shonky licence inspectors and staff members who have been bribed for information. However, the RTA is now to have the database for everyone in New South Wales, drivers and non-drivers alike. This system, of course, may be open to abuse. Photos and details may be accessed by unauthorised persons for illegitimate reasons. Making photographs and other such details readily accessible without guaranteeing control on such access may be dangerous. I believe also that the maximum penalty prescribed by the bill, $5,500, is inadequate to deter corrupt conduct by RTA employees. More effective controls on the conduct of RTA officers must be instituted.
In February 2005 the Australian Privacy Commission disseminated a review of the bill. One excellent point made by the commission was that although the bill provides that the photo card will not be mandatory for all non-drivers in New South Wales, it may become compulsory by social sanction, if not by law. As the commission articulated:
Those people who decide not to possess either a driver's licence or Photo Card will likely find themselves increasingly frustrated in their attempts to access government services or interact with a variety of businesses. Eventually, even people with strong objections to holding Photo ID will be forced by circumstance to give in. And so a "voluntary system" becomes compulsory by force of social and economic sanction, rather than by force of law.
It would also be especially useful for the Government to consult with the Australian Privacy Commission, which is the peak organisation protecting privacy interests, before the bill is passed in its current form. The bill highlights a growing issue that must be considered in the context of public consultation: the need for a national identification system. The Christian Democratic Party supports the bill.
Reverend the Hon. FRED NILE [6.16 p.m.]: Reverend the Hon. Dr Gordon Moyes addressed the bill in detail, and I join him in supporting it. The introduction of a photo card is a positive step, although I know that the Privacy Commission and other organisations have expressed some fear that the card might be abused. The value of the card will far outweigh that fear. If problems arise, the legislation can be reviewed.
Ms LEE RHIANNON [6.17 p.m.]: The Greens clearly support the introduction of a photo card. We congratulate the Council of Social Service of New South Wales and the Combined Pensioners and Superannuants Association on their work in making this card a reality. They identified their members' clear demand for the card. We congratulate the Government on responding to that demand. However, we cannot believe that the Government has not responded to the clear calls by privacy experts to alter the Photo Card Bill to make sure that the operation of the card does not seriously compromise the privacy of New South Wales citizens. Over the past few months the Australian Privacy Foundation, which is crammed full of privacy experts, lawyers and academics from across Australia, has lobbied the Government, the Opposition and the crossbench very hard to highlight some of the dangers inherent in the bill.
The foundation has suggested a workable solution to achieve a card without privacy dangers, which I will outline in the Committee stage. The Minister for Economic Reform has completely ignored the foundation's concerns and failed to respond to its numerous letters. That is regrettable, but, not surprisingly, that failure characterises his arrogant style. The bill will allow for an all-purpose identity card. There has been almost no debate and no public consultation, yet the Government has introduced the most fundamental attack on our personal freedom since the failed Australia Card in the 1980s.
A central database will be created to record the personal details of everyone in New South Wales. The bill places no limit on how much information the Roads and Traffic Authority [RTA] can collect about people, and it places few limits on who can access the data. Clearly there is a big problem with that. I very much hope that the Coalition will consider the bill carefully, because at the moment I understand, from what it did in the lower House and from comments made tonight in this House, that the Coalition is just going along with the Government. Given the strong stand the Coalition took against the Australia Card in the 1980s, I find that surprising.
The bill places no limit on how much information the RTA can collect about people. The bill even makes it a crime to not tell the RTA every time one moves home, even if one does not have a drivers licence. One of the biggest privacy risks comes from the proposal to create a unique identifier for every person. This is one of the key aspects of the bill that the Greens believe needs to be addressed. It can be addressed in a way that does not limit the possibility of having a photo card.
We can remove the unique identifier and still have a photo card—a key issue that all honourable members should understand. The unique identifier allows both the Government and businesses to track, link and profile people's movements and transactions. A centralised database poses greater security risks to people and is more likely to increase the risks of identity theft and fraud. The Federal Liberal Government recognised the risks of centralising vast amounts of personal data. It is well known that this is a gift to organised crime, which is why I am surprised that the Government has gone down this track. I am surprised that the Opposition is supporting the Government relatively unquestioningly.
This is not just a gift to organised criminals; it is a gift to terrorists and other people intent on doing harm. This Government was keen to take up the issue of terrorism and it introduced four separate pieces of legislation relating to this matter. Here we have something that is real and that makes it much easier for people who are up to no good to access important information about others, yet the Government is not prepared to tidy up this bill in such a way as to afford greater protection and limit opportunities for abuse. The Government is offering us only one database, which means one database to hack into—how much easier is that?—or one clerk at the Roads and Traffic Authority to bribe.
I trust that members of the New South Wales Liberal Party recognise that and consider supporting the Greens amendments in Committee. I have been told that at the moment they are not prepared to support our amendments. I hope that they reconsider their decision. This is a serious issue. I repeat: We can have a photo card without having a unique identifier. The Government seems intent on creating this great honey pot of data, despite the obvious risks involved for the people of New South Wales.
I refer next to advice provided to the Government by Privacy NSW in relation to this bill. Yesterday in the lower House reference was made to an email from the Acting Privacy Commissioner. That email states that the Acting Privacy Commissioner has no problems with the bill, which I am sure would have made the Government very happy and which is why Government members were quoting from it. The Acting Privacy Commissioner said there were no problems with the bill so honourable members might well then ask why we are worried. The email states:
Privacy NSW was consulted during the preparation of the legislation and I have no concerns with the privacy aspects of the bill as presented to the Parliament.
That significant advice obviously carries some weight, something which Don Page noted in his speech. It is important to put that advice into context. The Greens question the integrity of that advice when it is compared with advice from other privacy experts across Australia, represented by the Australian Privacy Foundation, which puts so much energy into trying to raise the alarm in relation to this bill. All honourable members would be aware of the Government's running down of Privacy NSW over the past two years by failing to support a permanent Privacy Commissioner, as promised. The Government cut its budget and gutted it of expert senior staff.
In that context can honourable members confidently rely on the advice of the Acting Privacy Commissioner that he has no problem with the privacy aspects of the Photo Card Bill? We must think carefully about this issue because not all advice is as objective as it may seem. Has Minister Costa been compromising New South Wales' privacy independence by heavying the acting commissioner on this issue now that he knows the Government's kneecapping job is starting to be effective and that that is possible? It is a scenario that we could well imagine after witnessing his behaviour in this place day in and day out and after we have heard reports from his colleagues about their problems with him.
The Greens are very concerned about this issue. Can we be assured that this is fearless and independent advice when it was provided by the Acting Privacy Commissioner, Mr John Dickie, who may understandably be nervous considering he has been on a series of short-term temporary contracts and can be removed by the Attorney General at any time? I very much doubt whether Privacy NSW, when it was a strong and feisty agency, would not have had grave concerns about this card when the former roads Minister, Carl Scully, first floated the idea. I think it would have had some wise advice about how to introduce the card in a form that did not compromise privacy to such a degree and that did not open up to fraud to varying degrees the database required for this card.
Maybe times have changed and advice has changed. That would explain the discrepancy. Considering what has been done to Privacy NSW over the past two years, it is not surprising that that is so. Today I moved a motion in this House calling for papers from various agencies to try to flush out this issue. I look forward to receiving the results. I put it to all honourable members that it is important for us to be given an opportunity to look at these papers in the context of this bill. I ask all honourable members to think carefully about whether a two-line email from the Acting Privacy Commissioner is enough to call off debate on the privacy aspects of this bill. I put it to them that it is not, and that there is a clear advantage for the Government in gaining that advice from the Acting Privacy Commissioner.
In recent times the Government tried to abolish Privacy NSW and transfer its functions to the Ombudsman. I want to share with honourable members news that has caused the Australian Privacy Foundation to ask whether anybody is home in the Privacy Commissioner's office. The part-time Acting Privacy Commissioner, Mr John Dickie, generally has been very quiet about privacy law and policy. However, the Australian Privacy Foundation learned just this week that he stated on record he believes there are no privacy issues arising from the Photo Card Bill. I share the foundation's surprise at that view.
The Photo Card Bill has been criticised by privacy experts as proposing an Australia card style regime with comprehensive analysis of the bill published two months ago by the foundation. If passed, the bill would create a centralised database aimed at holding the personal records of every resident in New South Wales and create an identity card with a unique identifier. The purported objective of providing non-drivers with convenient evidence of identity could easily be met by a far less intrusive system. The foundation suggested detailed amendments to achieve that. The foundation spokesperson, Nigel Waters, commented on these developments and said:
That an Acting Privacy Commissioner cannot see any of the obvious privacy implications in this Bill is flabbergasting.
He went on to state:
There is a plan to introduce an all-purpose identity card in NSW, but the very person supposed to review such proposals seems to be asleep at the wheel.
He then said:
As the Acting Privacy Commissioner seems to be either unwilling or unable to provide independent and expert advice on such a critical issue we have lost faith. Neither Mr Dickie nor the NSW Government appear to take privacy seriously.
I urge all honourable members to consider those comments because I understand and appreciate how they may have been influenced by the comments in the email from Mr Dickie. Here we have some clear rejection of Mr Dickie's position in relation to this bill.
The Government's history of not taking privacy seriously is worthy of comment and analysis. The Government has worked to marginalise and weaken the Privacy Commissioner's office, now known as Privacy NSW, ever since it was embarrassed by the former Privacy Commissioner's public reporting into the Aquilina affair a few years ago. The Government has left the position of Privacy Commissioner vacant for almost two years, and there is still no visible action to fill it permanently. It is difficult to believe that the Government is serious about privacy when it does not fill the position but simply has an acting commissioner on three-month contracts. One wonders what the Government is up to—clearly something is going on. The Government does not take such decisions lightly. It has a game plan here. I do not think it is a game plan that has the interests of the people of New South Wales at heart.
In 2003 the Government attempted to abolish the Privacy Commissioner's office, but it was thwarted by the combined efforts of the Opposition and crossbench members of Parliament in the upper House. Then, in 2004, the Government starved the office of funds and expertise by abolishing the four most senior staff positions and dictating its own restructure of responsibilities. The result was a mass exodus of 9 of the 12 staff within just a few months, leaving Privacy NSW with virtually no corporate memory or privacy experience. The Government's report of the five-year review of the Privacy and Personal Information Protection Act 1998 is now months overdue. It seems that the Government, from the Premier down, has simply jettisoned, downgraded and treated with disdain the whole issue of privacy. This sequence of events fuels suspicion that the Government still plans to simply abolish the office outright, leaving the people of New South Wales without an effective privacy watchdog.
We should remember that the role of the Privacy Commissioner is supposed to be independent of the government of the day. But independence cannot be assured unless the person in the role has job security as envisaged in the Act. I emphasise that point. With these sorts of positions, job security is vital if the person is to be in a position to provide objective advice. If they had the threat of losing their job hanging over their head, by far the majority of people would be extremely circumspect in the advice they offered to the government of the day and to the people of New South Wales. With regard to the position of Privacy Commissioner, the Act provides for a fixed term of up to five years, appointment by the Governor, and removal only by the Governor on the basis of misconduct or incapacity.
Mr Dickie, the Acting Privacy Commissioner, has no job security. His appointment was originally only for three months. Although he has now been in the job for more than 18 months, his contract has never been for more than a few months at a time. As an acting commissioner, he is appointed by—and can be removed at the whim of—the Attorney General. In other words, he is reliant on the Government for his livelihood. We could expect that he could well be looking over his shoulder all the time, just to make sure that he still has a job. He would be considering all the statements he makes, because he may well consider that anything that is out of step with the Government may result in his not having a job. Nigel Waters, the foundation spokesperson, summed up Mr Dickie's untenable position as follows:
The Privacy Commissioner's functions under the Act include reviewing government proposals and publicly commenting on matters of concern. But how could anyone feel comfortable speaking out when their employment can be cancelled at any time?
I believe Mr Waters' comments are right on the money. On 2 May it will be two years since the former Privacy Commissioner, Chris Puplick, resigned. How will this occasion be marked at Privacy NSW? Acting Commissioner John Dickie will be overseas at that time; he is on a six-week holiday. The foundation has learned that no-one has been appointed in Mr Dickie's place. Moreover, his absence coincides with that of the next most senior officer.
Debate adjourned on motion by Ms Lee Rhiannon.