Digital ID will go mainstream across Australia in 2024. Here’s how it can work for everyone

n a world promising self-driving cars and artificial general intelligence, the prospect of a new form of digital identity verification can feel … less than exciting.

And yet digital identity is about to be unleashed in Australia and around the world. In 2024, many years before most of us experience the joy of commuting in our fully autonomous car, new forms of digital ID will profoundly change how we engage with government and business. For example, digital ID may remove the pain of handing over physical copies of your driver’s licence, passport and birth certificate when renewing your Working with Children Check or setting up a new bank account.

How can we gain the benefits of digital ID – convenience, efficiency, lower risk of cybercrime – while minimising the attendant risks, such as privacy leaks, data misuse, and reduced trust in government?

In a new paper released today by the Human Technology Institute, we propose legal and policy guardrails to improve user safeguards and build community trust for the rollout of digital ID in New South Wales. While the paper focuses on NSW, it contains ten principles to support the development of any safe, reliable and responsible digital identity system.

Across Australia, governments are kickstarting digital identity initiatives

Some forms of digital identification already operate in Australia at scale. For example, the Document Verification Service was introduced as early as 2009 to automate checking of important documents such as passports.

Last year this service was used more than 140 million times by roughly 2,700 government and private sector organisations. A limited form of facial verification technology was used well over a million times.

A key problem, however, is that Australia has not had an effective legal framework to govern even the existing digital ID system. This is starting to change.

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Read more: A national digital ID scheme is being proposed. An expert weighs the pros and (many more) cons

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In June this year, the federal government released a national strategy for digital identity resilience. In its final sittings for 2023, the Australian Parliament passed the Identity Verification Services Bill 2023, which provides some important protections for privacy and other rights.

Also in December, the government proposed a second law, the Digital ID Bill 2023. This bill would provide rules for a major expansion of Australia’s system of digital identification.

Notwithstanding this recent flurry of activity in the federal government, NSW has long been Australia’s leading jurisdiction in this area. It announced its Digital ID program in April 2022 and has quietly worked to put in place the key elements of what could become a world-leading digital ID system, with strong community safeguards.

What is a ‘digital identity’, and what are the risks?

The technologies at the heart of digital ID are powerful and carry risks.

In particular, facial verification technology matches an individual’s face data against a recorded reference image. It may also incorporate “liveness detection”, which checks that the face to be verified belongs to a genuine individual requesting a service in real time (as opposed to a photograph, for example).

NSW’s digital identity initiative uses both these technologies.

Overall, digital identity should mean less of our personal information is collected and used by third parties. For example, when someone enters a pub and a bouncer asks for ID, the only information the bouncer needs to know is that the patron is over 18. The bouncer doesn’t need other personal information on their licence, such as their address or organ donor status.

Good design and regulation would ensure the digital ID service can verify someone’s age without disclosing other sensitive data.

On the other hand, these technologies use sensitive personal information and this brings risks when they are used to make decisions that affect people’s rights. Errors may result in an individual being denied an essential government service.

Because a digital ID system would by its nature collect sensitive personal information, it also poses risks of identity fraud or hacking of personal information.

Making digital ID safe

There must be robust safeguards in place to address these risks.

Accountable digital identity systems should be voluntary, not compulsory. They need to ensure citizens have options for choice and consent, and should be usable and accessible for everyone.

Digital ID also needs to be safe. It should protect the sensitive personal information of users and make sure this data is not used for other, unintended purposes like law enforcement.

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Read more: Australia's National Digital ID is here, but the government's not talking about it

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To achieve these aims, we recommend that NSW Digital ID be grounded in legislation that enshrines:

• user protections, including providing for privacy and data security of all users

• performance standards, ensuring that digital identity performs to a high standard of accuracy and be fit for purpose, with public reporting by the responsible government agency or department on relevant independent benchmarking and technical standards compliance

• oversight and accountability, with both internal and external monitoring, and clear redress mechanisms

• interoperability with other government systems.

These principles are not specific to NSW. They are relevant and transferable to other jurisdictions looking to develop digital identity systems.

Whether Australia’s digital identity transformation is a success depends on how digital identity systems are established in law and practice. It is crucial that robust governance mechanisms are in place to ensure digital identity systems are safe, secure and accountable. Only then will Australians embrace and trust the digital transformation that is afoot.

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HTI’s work to develop independent expert advice outlining a governance framework and training strategy for NSW Digital ID was funded by a James Martin Institute Policy Challenge Grant. 

Source:The Conversation

The Right To Silence Across Australian Jurisdictions

The right to silence is not protected by the Australian Constitution, unlike in the United States where is is guaranteed by the Fifth Amendment to that nation’s constitution and reflected in what are commonly known as ‘Miranda rights’, also known as the right against self-incrimination.

Rather, protections against a person’s silence being used against them in criminal proceedings have developed in Westminster (British) common law – which is law developed by the courts over many years.

Here’s a general outline of the current protections in states and territories across Australia, as contained in laws and crystalised in formal cautions given by the police.

What is the right to silence?

In short, the right to silence in Australia is derived from various common law principles including the presumption of innocence, the burdens and standards of proof in a criminal trial and the privilege against self-incrimination.

The right to silence means that no adverse inference should be drawn from a defendant’s failure to answer police questions during interview or to present evidence at trial. An ‘adverse inference’ is any kind of assumption or conclusion that a person is more likely to be guilty.

The principle means that, other than their name and address, a charged criminal defendant is not required to provide any information to police (subject to some limitations), and their failure to answer police questions cannot be used against them at trial.

One common limitation to the right to silence in Australia is an exception in circumstances of partial silence. This means that a defendant cannot invoke their right to silence if, during a police interview, they answer some questions but not others. In those circumstances, an adverse inference can be drawn from the fact that they have partially responded to police inquiries.

Generally, it’s best to not provide any response during a police interview, other than providing your name and address – an approach called a “no comment interview”.

Although the right to silence exists under common law and therefore across Australia, it has also been codified (or legislated) in each State and Territory. Some of these provisions are identical (as they are part of uniform evidence law) whilst others have their own distinct wording.

The right to silence in New South Wales

The right to silence in NSW is outlined under section 89 of the Evidence Act 1995 (NSW) which provides that:

(1) Subject to section 89A, in a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused–

(a) to answer one or more questions, or

(b) to respond to a representation,

put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.

(2) Evidence of that kind is not admissible if it can only be used to draw such an inference.

(3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

(4) In this section–

“inference” includes–

(a) an inference of consciousness of guilt, or

(b) an inference relevant to a party’s credibility.

 This right is severely limited by the operation of section 89A of the Evidence Act which has curtailed the right to silence in certain situations.

A full explanation of the right to silence in New South Wales and its dilution since 1 September 2013 following the enactment of section 89A, as well as situations where the right does not apply at all and witnesses can be compelled to give evidence is contained in this article.

The right to silence under Federal law

The right to silence under Federal law is outlined under section 89 of the Evidence Act 1995 (Cth), which states:

1)  In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused:

(a)  to answer one or more questions; or

(b)  to respond to a representation;

put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.

(2)  Evidence of that kind is not admissible if it can only be used to draw such an inference.

(3)  Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

(4)  In this section:

“inference” includes:

(a)  an inference of consciousness of guilt; or

(b)  an inference relevant to a party’s credibility.

The right to silence in Victoria

The right to silence under Victorian law is outlined under section 89 of the Evidence Act 1995 (Vic), which  states:

1)  In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused:

(a)  to answer one or more questions; or

(b)  to respond to a representation;

put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.

(2)  Evidence of that kind is not admissible if it can only be used to draw such an inference.

(3)  Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

(4)  In this section:

“inference” includes:

(a)  an inference of consciousness of guilt; or

(b)  an inference relevant to a party’s credibility.

The right to silence in Queensland

The right to silence under Queensland law is outlined under section 397 of the Police Powers and Responsibility Act 2000 (Qld), which states:

Nothing in this chapter affects the right of a person to refuse to answer questions, unless required to answer the questions by or under an Act.

This preserves the common law right to silence in Queensland.

The right to silence in the Australian Capital Territory

The right to silence under ACT law is outlined under section 89 of the Evidence Act 2011 (ACT), which states:

(1)     In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or someone else failed:

(a)     to answer 1 or more questions; or

(b)     to respond to a representation;

put or made to the party or other person by an investigating official who at the time was exercising functions in connection with the investigation of the commission, or possible commission, of an offence.

(2)     Evidence of that kind is not admissible if it can only be used to draw an inference mentioned in subsection (1).

(3)     Subsection (1) does not prevent use of the evidence to prove that the party or other person failed to answer the question or to respond to the representation if the failure is a fact in issue in the proceeding.

(4)     In this section:

“inference” includes the following:

(a)     an inference of consciousness of guilt;

(b)     an inference relevant to a party’s credibility.

The right to silence in Tasmania

The right to silence under Tasmanian law is outlined under section 89 of the Evidence Act 2001 (Tas), which  states:

1)  In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused:

(a)  to answer one or more questions; or

(b)  to respond to a representation;

put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.

(2)  Evidence of that kind is not admissible if it can only be used to draw such an inference.

(3)  Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

(4)  In this section:

“inference” includes:

(a)  an inference of consciousness of guilt; or

(b)  an inference relevant to a party’s credibility.

The right to silence in the Northern Territory

The right to silence under Northern Territory law is outlined under section 89 of the Evidence Act 2011 (NT), which  states:

1)  In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused:

(a)  to answer one or more questions; or

(b)  to respond to a representation;

put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.

(2)  Evidence of that kind is not admissible if it can only be used to draw such an inference.

(3)  Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

(4)  In this section:

“inference” includes:

(a)  an inference of consciousness of guilt; or

(b)  an inference relevant to a party’s credibility.

The right to silence in South Australia

The right to silence under South Australian law is outlined under section 18(1)(b) of the Evidence Act 1929 (SA), which  states:

the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution.

The right to silence in Western Australia

The right to silence under Western Australian law is outlined under section 8(1)(c) of the Evidence Act 1906 (WA), which  states:

the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution.

Source: Sydney Criminal Lawyers

Victoria Police – template letter of empty threats (Enforcement warrants and seven-day notices)

Enforcement warrants and seven-day notices.

"DO NOT IGNORE THIS LETTER" or rather should it be ‘IGNORE THIS LETTER’?

Some citizens or rather ‘sovereign citizens’ or the 'free man’ on the land may interpret this letter as an offer to contract, but the reality is quite different.

You’ve already ‘contracted’ with your friendly police force, hence you are the proud recipient of this letter.

In this letter Victoria Police claim that there is in ‘outstanding’ (as in spectacular?) warrant to arrest.

They then state that if you do not respond within 7 days (where 14, is normally acceptable, and 28 can also be used), the police will ‘assume’ that you are avoiding them.

What about if you’re on holidays locally, interstate or overseas? What about if your work has taken you away from home for a month? What about if you’ve landed in hospital had an operation or three, and have gone into rehabilitation for a couple of months?

This is clearly an oppressive ‘penal colony policy’ by those in government.

First and foremost, you are 'guilty' of whatever they conjure up, oh, that's strict liability and absolute liability. See post: The difference between Absolute and Strict Liability

Victoria Police then lists 5 actions where you will be punished as a result of not showing up within 7 days.

1). Victoria Police will then inform 'Social Security' a federal jurisdiction, that you are ‘Unlawfully at Liberty’, an illegal action by VicPol.

2). Victoria Police states that they will Break, Enter and Search ANY PLACE where you are suspected to be, INCLUDING your place of employment. Well, they better be sure that every ‘i’ is dotted and ‘t’ is crossed, where the so called warrant is stamped and signed by the relative issuing authority, where you could also obtain the affidavit for this action if the need arises.

3). Victoria Police also states that they will release your photo to media outlets, where not only this is a breach of your privacy, but also could result in a lawsuit for defamation, which they don't care as it's the tax payers that are paying, if the lawsuit becomes successful and not the actioning police person. 

4). Victoria Police states that any motor vehicle that is registered in your name may be subject to police ‘scrutiny’, define scrutiny, as in roadworthy?

5). Victoria Police also states that if there are any ‘outstanding’ fines with the Sheriff’s Office, Victoria Police ‘may’ contact the Sheriff’s Office to request you Driver’s Licence to be suspended.

This therefore indicates that the (lawfully appointed) Sheriff or the lawfully appointed Sheriff’s officer, persons that are subject to the Supreme Court of Victoria, will act under the dictation of Victoria Police, an unlawful action.

The person that was mentioned in this letter, did not attend the police station, where after 7 days and later on 3 years the above five threats did not occur.

Why?

Because Victoria Police never possessed any lawfully issued warrant.

NOTE:

Familiarise yourself with your state's Bench Warrant, which must be signed, stamped and dated in order for it to be valid.