Guest Post: dot – Submission re Digital Identity bill

The Digital Identity framework does not pass any reasonable cost-benefit analysis. Nor does the framework show any understanding of how e-commerce or digital currencies work.

-The PPSR is a white elephant, why won’t this be?
-Service providers have engaged in e-commerce for over two decades.
-Why can’t banks and shops collaborate to use QR codes? Why is government involvement necessary at all?
-How is one document or key, less vulnerable than many?
-We already have consumer protections.
-This system is not compatible with cryptocurrencies or crypto wallets which are arguably more secure.
-If I am buying something online, why do I need to prove who I am? Aren’t there laws already in place?
-If the idea is to prevent fraud, it will not prevent fraud. Not unless we make simple transactions more complex. Having one “key” or document is secure until that key is no longer secure.
-Would we ban people overseas gifting Australians with goods from Australian shops? If we are not, then we are not going to stop Australians from trying to get around this.
-Who has asked for this and if it is a business, how do they demand being taxpayer subsidised?

Legally, and from a human rights perspective, this proposal is flawed on its own and considering the confluence of increasingly more repressive laws in Australia.

The Bill is flawed. The below being used in good faith is contingent on those with political, bureaucratic and judicial power always acting with unquestionable morals. Unfortunately, angels do not govern us.

The proposed system is to be managed by the Oversight Authority. Sections 87 and 88 give the Oversight Authority complete control of the implementation of the system. Furthermore, section 89 provides that the Oversight Authority “is not subject to direction”.

Section 156 allows the Oversight Authority to delegate “all or any of the Oversight Authority’s powers” to members of the Australian Public Service. Section 153 protects the Oversight Authority and delegates against civil legal action for damages caused by the “good faith” implementation of the powers under the Act. No one in the private sector is immune to the consequences of their own incompetence like this. This belies the lack of understanding of cryptocurrencies noted before. This legislation has been drafted with minimal understanding of the private sector.

The phrase “is not subject to direction” may result in an unaccountable parallel government, like the National Cabinet and would only have limited Parliamentary oversight. Possibly, any Australian Public Servant can be made an officer of the Oversight Authority and have immunity to all actions.

This Bill cannot become Australia’s Enabling Act – for a parallel, unelected Government with no control by the citizenry. We cannot assume angelic politicians, public servants or judicial officers will save us. We are better off not having this law at all. It is too open to abuse.

The confluence of other laws contrary to Australia’s human rights obligations and common law heritage along with the Digital ID proposal is very worrying. The data retention laws have already been misused for trivial matters like dog registrations with local councils. There is currently a cybercrime Bill before Parliament that would allow law enforcement to change the online details of targets. Abuse of this power under the aegis of a Digital ID economy would possibly lead to people being unable to engage in basic retail sales. The cybercrime bill would only require a member of the AAT, not a judicial officer to issue an authorisation.

The Digital ID concept along with the cybercrime bill in the context of absolute liability offences is terrifying. There is essentially no recourse if these powers were abused to contrive a crime existing. Australia also has very weak protections against multiple prosecutions for the same offence. There is also a trend to weaken common law rights, such as civil penalties, trials not on indictment, ex officio indictment and trials for indictments heard summarily.

Furthermore, recent constitutional law cases have strengthened the position of the States and Commonwealth against the individual where the monopoly on commercial proofs of identity and abuses of the above laws effectively destroy the rule of law.

Specifically, the Pape case had the High Court surrender the legitimacy of any controversial decisions of the executive (as a “nationhood” power) to Parliament. This diminishes the claim at all that Westminster democracies operate as “crowned republics”. The nationhood power is loosely defined and politicians are want to find a sufficient villain or cause whenever necessary.

The recent cases lost by Clive Palmer potentially: 1. Limit the right of appeal (civil or criminal) against any government, contrary to the Kable cases. 2. Following the case of Wootton v Queensland (2012), delegated legislation in Australia is “untouchable” if the enabling legislation is found valid; which gives delegated legislation the potential to be abused. “States of emergency” have been demonstrated to be enough to lose the concept of proportionality. The concept of the delegated legislation not being validly made from the enabling legislation is almost an anachronism. Keep in mind the new “emergency powers” sought by the Victorian Government.

Specifically, the Palmer cases possibly allow the powers of the Oversight Authority to become absurd and near impossible to challenge.

The cases regarding Peter Spencer implicitly overturned precedent from the WWII era that prevented the States acting for the Commonwealth to derogate rights on behalf of the Commonwealth for a quid pro quo.

These cases and the overwhelming potential for abuse of the Digital ID outlined above are alarming. Australians should keep in mind the secretive nature of the “National Cabinet”, (and once again) the new emergency powers desired by the Victorian government and that our State Parliaments did not sit for months this year whilst the executives were making delegated legislation at pace.

Finally, reference to Hart v Commissioner of Taxation is noted, where rules of evidence and reasoning used successfully by the ATO would amount to fraud in normal commerce; made common law. Under such a circumstance and the prior arguments laid above, the Digital ID Bill should not be countenanced. Even if dishonesty by law enforcement (legal, illegal, authorised or unauthorised) can be proven regarding abuse of the Digital ID and cybercrime Bill, that is not sufficient under tax law to prove innocence, which is, anyway, contrary to the principles of our common law system is meant to be grounded on. Reiterating the point regarding absolute liability and the derogation of our rights in a criminal trial diminishing in recent decades, this Digital Identity Bill can only be described as dystopian.

The bill is an anathema to our human and common law rights. The potential for abuse on its own, and with the combination of other laws is simply too large to be acceptable.

This Bill therefore potentially creates a “social credit” system like used in the oppressive People’s Republic of China.

It is un-Australian and it should be killed before it goes any further. It should never be raised in Parliament again.

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October 27, 2021 4:42 pm

Fight on Dot we have lost so much leagle rights in the past few decades.

Botswana O'Hooligan
Botswana O’Hooligan
October 27, 2021 5:32 pm

You are right Dot but things could be worse if the government employed the IT folk who work for Flybuys and Everyday rewards for those folk know where you shopped, at what time, what you bought, and what you are liable to buy next based on your usual shop. When on bended knee each evening after the orison asking for a benediction on Mr Morrison and that nice Mr Andrews one must add a plea asking the great Smiter prevent government from hiring those people at any cost, even before he, she, or it, smites malcolm turnbull for his magic light globes.

October 27, 2021 5:46 pm

1. Can’t remember if this is the full or slightly chopped down version.
2. want to do…a howler, wont to do is correct.

Bruce of Newcastle
Bruce of Newcastle
October 27, 2021 6:41 pm

LOTR is like 1984. The Left use both as manuals, not warnings. One ring to rule us all and in the darkness bind us. Maybe if they paint Parliament House black it’d look a bit like Orthanc.

October 27, 2021 11:12 pm

outstanding. thank you.

October 28, 2021 12:09 pm

This is just a continuation and extension of the already in-place laws and rules that hand total power to govco departments without any accountability.

Think you are safe without this?

My ex business partner took a traffic infringement that was not his doing to court (long story). Judge agreed and tossed out the fine. But then stated that he was UNABLE to direct the NSW RTA to restore his license points, only “recommend” that they do so. They did not – refused point-blank. Punished even after due process finds you not guilty. Not recent either – 10+ years ago!

Now they can “alter” your online content without your knowledge or consent, then arrest you for incitement to violence, racism, whatever because of content you didn’t even author, but is attached to your identity – and you’d somehow have to prove your innocence, rather than have them prove your guilt.

This place hasn’t just gone down the toilet – it’s already been through the sewage works and dumped into the ocean.

“Don’t push me ’cause I’m close to the edge” – someone will snap sooner or later, and it won’t be pretty if enough people see the total injustice of it all. Personally, even though I realise it could be very ugly, I can’t wait for it – an object lesson in what happens when you try to be authoritarian arseholes is long overdue.

Old bloke
Old bloke
October 28, 2021 3:52 pm

Thanks Dot, well stated.

Given that the site which was accepting submissions for public feedback on this latest piece of dystopian tyranny crashed, we should reflect on just how secure our personal data will be. I suppose the relevant Minister could now ram this legislation through Parliament and say that there was no negative feedback from the public.

These people still have the gall to call themselves Liberals, sack the lot of them.

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