Biometrics, CDR, broadband tax: All the Bills Canberra wants to reheat in 2019
Sitting before the Australian government is nine pieces of tech-focused legislation that it is aiming to have passed before the year is over.
In no particular order, on the agenda for 2019 is the pair of biometric Bills, introduced by the federal government in the former Parliament in February last year.
The Department of Home Affairs is currently responsible for the operation of a central hub of a facial recognition system that will link up identity-matching systems between government agencies in Australia.
The Australia-wide initiative allows state and territory law enforcement agencies to have access to the country’s new face matching services to access passport, visa, citizenship, and driver licence images from other jurisdictions.
The initiative comprises two parts: The Face Verification Service (FVS) is a one-to-one image-based verification service that will match a person’s photo against an image on one of their government records, while the Face Identification Service (FIS) is a one-to-many, image-based identification service that can match a photo of an unknown person against multiple government records to help establish their identity.
The Identity-Matching Services Bill authorises the Department of Home Affairs to operate the central photo-matching hub for communicating between agencies, allowing for the collection, use, and disclosure of identification information to provide identity matching services that employ facial biometric matching.
The use of facial biometric matching, the government says, is for the purposes of fraud prevention, law enforcement, national security, and related activity.
The Australian Passports Amendment (Identity-matching Services) Bill, originally labelled by former Foreign Minister Julie Bishop as being aimed at allowing real-time crime fighting, provides a legal basis for ensuring the minister is able to make Australian travel document data available.
A Parliamentary Joint Committee on Law Enforcement in April asked the government to be more transparent on the biometric Bills, specifically asking the government take into account its recommendations when developing any future strategies for biometric data and facial recognition systems.
The committee also called for the development of an appropriate regime to detect, audit, report on, respond to, and guard against events that may breach biometric data security. It also asked for the development of methods that assess the implications of any security breach, as well as how it would communicate the breach to both the general public and the technical, privacy, and security communities.
Delayed Consumer Data Right
Despite the first tranche of the Consumer Data Right (CDR) kicking off on 1 July, the federal government is hoping to pass the Treasury Laws Amendment (Consumer Data Right) Bill soon.
The CDR has been touted as allowing individuals to “own” their data by granting them open access to their banking, energy, phone, and internet transactions, as well as the right to control who can have it and who can use it.
The first sector to which the CDR will apply is finance, through an open banking regime. The big four banks were initially asked to have consumer data available by 1 July, but that deadline has now been pushed to 1 February 2020, with the yet-to-be passed Bill to legislate the requirement.
Despite hearing concerns over the adequacy of the privacy safeguards, the rushed nature of the Bill, the distinct banking focus the Bill will have, and whether the outcome of the CDR will serve organisations more than it will consumers, the Senate Economics Legislation Committee in March recommended that it be passed.
The Telecommunication Legislation Amendment (Competition and Consumer) Bill and the Telecommunications (Regional Broadband Scheme) Charge Bill, which the Joint Standing Committee on the National Broadband Network in November recommended be passed, seeks to strengthen requirements for owners of high-speed broadband networks to operate on a structurally separated basis.
The Bills empower the Australian Competition and Consumer Commission to authorise functional separation; establish a mechanism for funding regional broadband services; establish statutory infrastructure provider obligations on NBN Co and other providers of superfast carriage services; and make other associated amendments.
If passed, the legislation will also see the establishment of “competitively neutral funding arrangements” for broadband services provided predominantly in regional Australia.
Meanwhile, the Radiocommunications Amendment Bill and the Radiocommunications (Transitional Provisions and Consequential Amendments) Bill, seeks to amend the Radiocommunications Act 1992 to provide for an “efficient and flexible” spectrum management framework; provide for transparent and timely allocation processes, streamline equipment regulation; and provide “graduated and proportionate enforcement mechanisms for breaches of the legislative framework”.
A change to Australia’s encryption-busting laws currently exists in the form of allowing the Parliamentary Joint Committee on Intelligence and Security — which was originally tasked with reviewing the amendments made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 by April — to have its reporting deadline extended to June 2020.
Despite the Labor opposition believing it would have the opportunity to amend Australia’s encryption laws, which it had the numbers to do so earlier in the year, its amendments were stranded ahead of the May election.
The Bill, as currently passed, makes changes to more than a dozen pieces of legislation in an effort to combat what the government refers to as “the challenges posed by ubiquitous encryption”.
Under the new laws, Australian government agencies can issue three kinds of notices:
- Technical Assistance Notices (TAN), which are compulsory notices for a “designated communication provider” to use an interception capability they already have;
- Technical Capability Notices (TCN), which are compulsory notices for a designated communication provider to build a new interception capability, so that it can meet subsequent Technical Assistance Notices; and
- Technical Assistance Requests (TAR), which are “voluntary” requests, but which have been described by experts as the most dangerous of the three because there was less oversight, at least in the original version of the law.
Clawing back tax from multinationals
The Treasury Laws Amendment (Making Sure Multinationals Pay their Fair Share of Tax in Australia and Other Measures) Bill, focuses on “levelling the playing field for online hotel bookings” and is a technical fix to ensure certain inbound multinationals do not have inappropriate access to thin capitalisation tests designed for outward investors.
The Bill, according to Minister for Government Services Stuart Robert during his stint as Assistant Treasurer, helps ensure that rules tackling multinational tax avoidance, such as the Diverted Profits Tax and the Multinational Anti-Avoidance Law, apply to all relevant entities.
The Bill contains a range of measures centred on the research and development (R&D) tax incentive that the Senate Economics Legislation Committee in February asked the federal government to go back to the drawing board on.
At the time, the committee said it recognised the need for government to maintain public confidence in the integrity and financial sustainability of the R&D tax incentive, but that it is not confident the introduced measures would provide exactly that.
IP changes and giving activists a ‘fair go’ in the slammer
The Intellectual Property Laws Amendment (Productivity Commission Response Part 2 and Other Measures) Bill will phase out the innovation patent system, as well as allow for automated decision-making on patents.
It was recommended by the Senate Economics Legislation Committee in June that the Bill be passed, saying the changes to IP laws would promote and incentivise “investment in creativity, innovation, research, and technology”.
Also scheduled for passage is the Criminal Code Amendment (Agricultural Protection) Bill, which seeks to criminalise the use of a carriage service that has the intention of inciting another person to trespass or commit other property offences on agricultural land.
As Attorney-General Christian Porter said ahead of the election in April, the new offence has been designed to protect farmers and primary producers from the unlawful actions of animal activists.
“Penalties of up to 12 months imprisonment will apply to individuals who use a carriage service, such as the internet, to disclose personal information with the intention that another person would use that information to trespass on agricultural land. The law would also apply to other primary producers such as abattoirs,” he said.
Exceptions apply where there is a law being broken, such as whistleblowing on animal cruelty.
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