Warranted access to face-matching system thrown out by Home Affairs

The Department of Home Affairs said built-in privacy safeguards are sufficient, and that the Commonwealth Bill is not intended to regulate access to the services by other agencies.

The Department of Home Affairs has labelled a suggested warrant requirement to access Australia's facial recognition database as a "resource-intensive" process that could cause significant delays to matters of national security and potentially undermine law-enforcement investigations.

In a submission [PDF] to the Parliamentary Joint Committee on Intelligence and Security, Home Affairs said that although it is not clear how often government agencies will use the Face Identification Service (FIS), "it is likely that a requirement to obtain a warrant would effectively prevent government agencies from using the services, or obtaining the benefits of the services, in many cases".

The department believes the privacy benefits of requiring agencies to obtain a warrant would likely be "significantly outweighed" by the decreased ability of agencies to carry out their law-enforcement and national security functions.

"Obtaining a warrant is a resource-intensive process, both for the applicant agency and for the issuing authority hearing the application," Home Affairs wrote.

"The time involved in preparing, reviewing, and granting a warrant application to use services would significantly delay, and in some circumstances undermine, law-enforcement and national security investigations; impede operational activity, including the prevention of criminal acts; and divert resources from investigations."

The Australian government in February introduced two Bills into the House of Representatives that would allow for the creation of a system to match photos against identities of citizens stored in various federal and state agencies: The Identity-matching Services Bill 2018 and the Australian Passports Amendment (Identity-matching Services) Bill 2018.

The first Bill authorises the Peter Dutton-led department to operate a central hub for communicating between agencies, while the second would allow for real-time crime fighting, according to Foreign Minister Julie Bishop.

The pair of Bills make good on an agreement reached at COAG in October to introduce a national system allowing for biometric matching.

In the submission to the joint committee reviewing the Bills, Home Affairs said it considers the privacy safeguards built in to the Identity-matching Services Bill, as well as those contained in the inter-governmental arrangement and administrative and policy arrangements supporting the services, as being "sufficient" in ensuring the services are used appropriately.

"Judicial oversight of each individual circumstance of potential use by a law-enforcement agency would significantly limit the effectiveness of the services, and of the agency in performing its essential community protection functions," it continued.

According to Home Affairs, the Bill is not intended to regulate access to the face-matching services by other agencies.

"The department notes that the Bill is designed to facilitate access to information for certain purposes by agencies that have a lawful basis to do so under other legislation," it wrote.

"There are relatively few circumstances where law-enforcement agencies would need a warrant to obtain information needed to identify a person, or to verify a claimed identity.

"In addition, the governance arrangements for access to the services, particularly the FIS, have strict controls to ensure access is lawful and proportionate."

The face-matching services are designed to provide fast and automated access to identity verification and identification using facial images, with one intended purpose to assist law-enforcement and national security agencies in identifying persons of interest by providing them with "better tools" to share and match information than those currently available to them.

"To be clear about this, this is not accessing photo ID information that is not currently available," Prime Minister Malcolm Turnbull said previously. "These are all available to law-enforcement agencies now and have been for many years, if not for generations.

"It shouldn't take seven days to be able to verify someone's identity or seek to match a photograph of somebody that is a person of interest. It should be able to be done seamlessly in real time."

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