Legislative Council

GOVERNMENT BILL: Debate over digital fingerprinting using portable scanners

June 23rd, 2016

On the 23rd of June 2016 Mark spoke to the Summary Offences (Biometric Identification) Amendment Bill 2015.

The Hon. M.C. PARNELL: Just to assist the committee I would like to put a few remarks on the record. I will start by acknowledging the Family First contribution, and also the honourable member's referencing of George Orwell. I know he is a great student of modern literature. My recollection is that the book 1984 was actually written in 1948, which I learned at school. I guess the difference between the Greens' approach and that of Family First is that we want to make sure that body of work remains a work of fiction: we do not want it to become a documentary.

Whilst people say, 'Well, you doth protest too much,' I remind people that this bill does not refer just to particular identified fingerprint identification equipment: it actually refers to all biometric data and, as we know, biometric data is advancing at a rapid pace. We now have facial recognition technology. I do not know if this is true—maybe it is a good question for the minister to take on notice—but I even had someone tell me that the point-to-point cameras are good enough for facial recognition of drivers. I see the minister shaking his head. That was my first reaction, too. I did not think that was likely, but I tell you what, talking to the Hon. Andrew McLachlan about some of the technology that he has dealt with or become familiar with, it is not that far off the mark.

The point that is at the heart of the Greens' position is that we are supporting the use of new technologies, but we want to make sure that the technology tail does not wag the legislative dog. As these new technologies are developed they will all have different consequences, both intended and unintended. Each time one of these new devices is developed and is ready for use by our police, we want them to come back to parliament. The Greens are not happy with just passing a single piece of legislation that effectively covers all of these new biometric identification techniques.

The consequence of that approach is that we will be supporting the Liberal amendments. We will be supporting the amendments that have been put forward because they add additional checks and balances to what is pretty much a bill that effectively opens the door for all manner of technology to be used without it coming back to parliament. We think the Liberal amendments make a worrisome piece of legislation less worrisome. I just wanted to put that on the record, that when it comes to divisions, if there are any, the Greens will be supporting the Liberal amendments to this bill.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.
 The Hon. A.L. McLACHLAN (Liberal Party): I move:

 Amendment No 1 [McLachlan–1]— 

 P age 2, after line 25—After line 25 insert: 

     (2a) Section 74A—after subsection (2) insert: 

     (2a) Despite subsection (1), a police officer may only require a person to submit to a biometric identification procedure under subsection (1)(d) if— 

       (a) the person has refused or failed to comply with a requirement under subsection (1)(c) to state all or any of the person's personal details; or 

       (b) after requiring the production of evidence by the person under subsection (2), the officer is not reasonably satisfied as to the identity of the person. 

     (2b) Before a biometric identification procedure is carried out in respect of a person, a police officer must inform the person of the following matters: 

       (a) that the police officer is exercising a power under this section; 

       (b) the grounds on which the person is required to submit to the biometric identification procedure; 

       (c) the manner in which the procedure will be conducted and what directions may be given to the person for the purposes of the procedure; 

       (d) that any biometric data obtained from the person may only be retained for the purposes of conducting the procedure; 

       (e) the right of the person under this section to request confirmation from the Commissioner relating to the non-retention of the biometric data under subsection (4c). 

I have spoken to this amendment both in the second reading and at the beginning of the committee stage. I would just take the opportunity to respond to some of the more verbose and interesting comments by the Hon. Robert Brokenshire. I appreciate his attempts to read the minds of all South Australians. If he had that amount of clarity, maybe more Family First members would be gracing the red benches. 
The Hon. R.L. Brokenshire (Family First): I said the majority of South Australians, not all South Australians. 
The Hon. A.L. McLACHLAN (Liberal Party): The vast majority of South Australians. Family First, the Hon. Mr Brokenshire, as honourable members of this chamber would know, is on vastly different philosophical planes and pages in relation to how we view our democracy and the liberties that uphold us. 
The Hon. K.L. VINCENT (Dignity 4 Disability): Point of order.

The CHAIR: Point of order. The Hon. Ms Vincent. 
The Hon. K.L. VINCENT (Dignity 4 Disability): I appreciate that ministers Maher and Malinauskas, and to some extent the Hon. Mr Brokenshire, are in a mood, but I think they have had their fun, and now I would actually like to listen to the contributions of other members.

The CHAIR: I actually do not appreciate their attitude. I think they are showing a lot of disrespect for the Hon. Mr McLachlan, and I expect them now to listen to the Hon. Mr McLachlan finish his contribution and we will get on with this clause. The Hon. Mr McLachlan.
 The Hon. A.L. McLACHLAN: Thank you, Mr Chair, for your support and your protection from the government benches. We are not seeking in our amendment to restrict the use of biometric testing. I use the term biometric testing, and not like the Hon. Mr Brokenshire completely default to fingerprinting, which is the device which the police intend to use. We have modified the test. We have kept in place the existing arrangements in relation to identification, where police officers can ask for ID, ask for a name and address and then follow up with ID in certain circumstances. We have confidence in the South Australian police officers, because they are very well trained, to then, if they are not reasonably satisfied with the identity of the person, use biometric testing.

In our view, it in no way restricts their ability to use it. We understand that they have some reservations they expressed to us, but we did not find those sufficiently convincing as we balanced them against the submissions of the Bar Association and the Law Society. We have listened carefully to all the voices in the community that have made submissions to us and we believe we have crafted amendments which balance the liberties of the individual where they should be able to go about their business without interference by the state as against the need for the police to seek identity in certain circumstances.

I would like to build on the comments of the Hon. Mark Parnell in relation to this bill. This bill does not restrict any type of testing. Our amendments put in that parliament will decide what future tests and devices will be used by the police going forward. It is difficult to believe that this bill be presented to this chamber and then the police in the far distant future can use whatever testing they so feel, regardless of community input, which is really what we are doing here. We are putting the input of the community and forming views for their benefit.

I came across materials when preparing for this debate and, again, found an interesting contribution from the Hon. Mark Dreyfus, which I would sincerely suggest my honourable friend the minister read, because he is a Labor member who still commits to traditional Labor values of freedom. He has not swung to the hard right which infects the modern Labor Party in South Australia today. The paper he posted on 30 October 2014 is entitled 'Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014'. This bill has very different provisions but deals with biometric data and in the context of collecting biometric data or testing people, he says:

 Labor voiced its objection during the Committee process. It is not acceptable that such an expansion of power with serious consequences for the privacy of the ordinary citizens could be achieved without new legislation. Indeed, it is worrying that this aspect of the Bill only became apparent during Committee scrutiny—and it is a vindication of that scrutiny process that it did. 

 We welcome the Committee's recommendation to remove the ability of the Government to prescribe further biometric collection by regulation. 

If the honourable member does not find persuasive one of the leading law officers in the Labor Party, I probably cannot convince him myself. In my view, this bill represents an attitude to the executive that places too much weight on the administrative needs of the police over the rights of its citizens and, therefore, our amendments are crafted as I have expressed to the chamber not to restrict the police but to value the ability on the ground to make judgements and to also provide a provision of reporting of biometric testing. If the reports come in and over time we consider the reports that there is need for further amendment, I am sure the Liberal Party will take due consideration of that.
 The Hon. P. MALINAUSKAS: Notwithstanding my temptation to draw the chamber's attention to the irony or the political analysis that can be conducted in the context of the fact that the Greens and the Liberal Party are both supporting the amendment, notwithstanding my temptation to do that, I will attempt to address the questions and avoid base politics with accusations of being soft on crime and the like. So, let's just try to deal with it methodically.

This amendment is opposed because the proposed new subclause (2a) completely restricts the ability to utilise technology to enable rapid verification on the spot, and the use of the word 'rapid' is important, and I will come back to that. If a person refuses or fails to provide his or her details upon request, police could simply arrest them and convey them to the nearest police station for charging and fingerprinting. So, let's understand that important context.

Paragraph (a) of subclause (2a) places an unnecessary precondition on the use of the power. It would defeat a key purpose of the bill to enable our police officers to quickly identify people in the field in circumstances that are often challenging and hazardous without having to resort to an arrest. Paragraph (b) of subclause (2a) also places an unnecessary precondition on the use of the power. False identification is difficult to detect and an officer may only have a hunch that a person's verbal identification is false. This is the key point. That hunch would likely not satisfy the test of being reasonably satisfied and, as a result, these amendments would render the bill and the devices useless for police officers in the context of being able to achieve the rapid assessment.

Proposed new subclause (2b) is opposed on similar grounds. Requiring police officers to undergo a lengthy information session with every person who a police officer wishes to identify, using a biometric device, would again conflict with the purpose of the device to rapidly identify persons in the field. The requirements under subclause (2b) are onerous and lengthy. The government has consulted with the opposition extensively on this bill. It is disappointing that, despite repeated attempts to engage constructively to allow police officers to continue to use these incredibly useful devices, and repeated offers on a compromise position, the opposition continues to hinder the government to the detriment of the South Australia Police and community safety.

I think it is important that, in the pursuit of what might be legitimate concerns, we do not end up throwing the baby out with the bathwater. This technology is useful. The trial has demonstrated how effective a tool these devices can be for police in capturing people and, indeed, preventing crime, going into the future. Despite the legitimate concerns that drive the position of the opposition, the Greens and others, I would actively encourage them—I would implore them—to consider the actual function that a police officer serves and the context in which they often have to perform that function. It is not always reasonable or practical to impose upon a police officer, who is in the active line of duty in very difficult circumstances, the sort of preconditions that the opposition is proposing in these amendments.

I acknowledge that all in this chamber are forever trying to pursue a balance between providing police with the tools that they need in order to be able to perform their key function and also ensuring that we do not realise the concerns that the Hon. Mr Parnell and the Hon. Mr McLachlan have referred to in terms of an Orwellian state.

The question is about where that balance fits, if we are honest about it. The pursuit of that balance is legitimate, but we assert within the government that to accept the opposition's amendments would compromise the ability for police to be able to use that technology. We do not think that represents the balance that all of us reasonably desire, in terms of allowing the police to be able to exercise their functions in the ordinary course of their duties.
 The Hon. M.C. PARNELL: I thank the minister for his response. I just want to make an observation about the point he made in relation to the proposed new subclause (2b). The minister's main objection was the comprehensiveness of the information that needs to be provided to the person before they are fingerprinted. As part of that, the problem is the length of time it would take. My way of looking at it was to look at the five things which the police officer must inform the person of. I compare that with what I expect the police would currently want to be doing and I do not find a whole lot of difference in it. My guess is that paragraphs (a) to (e) could certainly be delivered in under a minute.

You can imagine the police officer saying: 'I am exercising power under section—whatever it is. I am going to ask you for your fingerprint because I believe you might be able to help me with my enquiries. Once the fingerprint has been taken, it will be used to see if there is a match on the database. The test will require you to put your thumb on this device.

The information will not be retained, and you have the ability to request confirmation from the commissioner.' I probably did that in 30 seconds. Maybe the script might be slightly more elaborate than that, but it seems to me that that is the scenario the minister says is unrealistic. But let's put it into context. Without this, the police are still going to be approaching people in the street, and they are still going to be giving most of that information, I would have thought.

They are going to say, 'I believe you might be able to assist me in my inquiries.' They will ask for their name and address. They will then explain to them that they are about to be fingerprinted. To be honest, apart from paragraph (e), perhaps, the right of the person to go to the commissioner and get an assurance that the information has not been retained, I would imagine this is the sort of information the police are going to be giving anyway. I do not see this as an incredibly onerous thing.

Even if we accept that it is more onerous than what the police want to do, let's think about it. We are having law enforcement officers fingerprinting people in the street, and we are worried that it might take 45 seconds rather than 30 seconds? I think that the minister is protesting too much about this level of inconvenience.

The law in the past has tended to distinguish between invasive procedures and non-invasive procedures. We distinguish between asking someone their name and address and sticking something into their mouth to get a sample of DNA. These new technologies, and especially ones that could be developed under this legislation, may not actually involve touching you at all. It might just involve 'look at this device', the new facial recognition device that is potentially allowed by this bill. It will not involve fingerprinting.

There are going to have to be procedures developed for advising people about what you are doing, why you are doing it, what your rights are and whether the record is going to be kept or not. I just do not see this as too onerous at all and I would be very amazed if the police protocols that are developed around fingerprinting do not involve giving most of this information to people in any event.
 The Hon. A.L. McLACHLAN (Liberal Party): Likewise, I do not find the government's arguments convincing. I take it from two perspectives. One is legal and the other is personal, having had experience in complying with legal requirements not too dissimilar to this in another context, but probably a bit more aggressive.

Effectively, the police officer today has to make a decision, when they ask for a name and address, whether they have a reasonable cause to suspect that the personal details that they have received are correct. They are making an assessment. The government's argument simply says that the police officer can make that assessment, but they cannot make a similar assessment 10 seconds later as to whether the ID has not been produced (they can use biometric identification), or if it is produced, looks dodgy. It is virtually the same decision-making process.

I would put to you that the government is actually arguing against itself. We have thought very clearly about this. We have thought about how it would role-play and I have used my personal experience as a legal adviser in another context.

I am not convinced that these mechanisms for using biometric identification are unreasonable or provide an unnecessary encumbrance. I have shown goodwill to the South Australian police, who I hold in high regard, and listened carefully to their submissions. I have also paid particular attention to the draft of this bill.

It is drafted and supplied with goodwill. It tries to get the balance right for using new technologies, which have not been restrained by this bill. In making this debate to honourable members I have tried to make clear that we have placed great weight on community safety, but also balance that against the submissions with the Law Society, which also places great weight on community safety. We are sure we have the balance right, that is the essence of the debate. We remain unpersuaded by the government submissions.
 The Hon. J.A. DARLEY (Nick Xenephon Team): For the record, I will be supporting the Liberal amendment.
 The Hon. P. MALINAUSKAS: In response to the Hon. Mr McLachlan's remarks, the distinction between drawing a conclusion about a false name and address versus a false ID is very different. Just remember the context in which it is being used. It will not be in the civility of an environment like we have now, we are talking about on the front line in a difficult situation. Many of us cannot begin to imagine the rather difficult circumstances under which police would be exercising these powers.

If a police officer is presented with a fake name and address which is given verbally, the police have the capacity to be able to make that assessment relatively quickly. However, when presented with a fake ID, the suggestion that somehow it is easy for a police officer with the naked eye, in the elements, under pressure and with a lot going on around them to assess whether or not that ID is fake is simply delusional.

It is a very different proposition to be able to contemplate making an assessment about someone giving a fake name and address, which is reasonable for a police officer to question, versus being given a fake ID, which I have been advised can be of incredibly high quality these days. A fake ID of high quality is very hard for a police officer to reasonably question, particularly in the context of that question occurring in the front line. I would simply say that I understand the legitimate pursuit and the intent behind the Hon. Mr McLachlan's amendment in this context, but it really is disconnected from what is happening on the front line in the real world. 
The Hon. A.L. McLACHLAN (Liberal Party): I do not wish to prolong the debate, but I would just refute that I am delusional. Indeed, I think I have considerable more experience in this than the minister.


The committee divided on the amendment:

Ayes: 10

Noes: 7

Majority: 3



Darley, J.A. Lucas, R.I. Ridgway, D.W. 
Dawkins, J.S.L. McLachlan, A.L. (teller) Stephens, T.J.
Franks, T.A. Parnell, M.C. Vincent, K.L.
Wade, S.G.    


Gago, G.E. Gazzola, J.M. Hood, D.G.E.
Kandelaars, G.A.  Maher, K.J. Malinauskas, P. (teller)
Ngo, T.T.    




Lee, J.S. Lensink, J.M.A                    
Hunter, I.K. Brokenshire, R.L.  

Amendment thus carried.

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