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100 Points

Forgery &


section heading icon     private ownership and use

This page considers cooption of consumers, card ownership and private use of national identification schemes in Australia.

It covers -

section marker icon     introduction

Politicians, officials and solutions vendors have typically emphasised that a national identity card is intended as a mechanism for public administration - in particular the delivery of social services - and will not be used by the private sector. In 2007 the federal Human Services Minister, in introducing the Human Services (Advanced Service Delivery) Bill, went further, characterising the Access Card as "the anti-ID card" and commenting that there would be prohibitions regarding private sector use of the Card.

Ownership of the Access Card will be vested in the card holder, a concession on the part of government that is arguably meaningless, and those owners will be allowed to "use their card for any lawful purpose they choose".

Claims that the Access Card (or a similar national identity card) will be restricted to official use are disingenuous. They are inconsistent with private sector use - and misuse - of driver's licences and other identity documents such as passports, uses acknowledged by the federal/state privacy protection agencies and by the Access Card Task Force's privacy advisers.

More broadly they pose questions about

  • policymaking, as ministers had recently mooted the benefits of a government services card that provides a standard form of identification and even features an electronic wallet capability
  • the shaping of debate about privacy, responsibility and services, as a case can be made for private sector use of a card if that use occurs within a coherent and effective privacy framework.

section marker icon     card ownership

In discussing the Access Card and the earlier Australia Card proposal we have differentiated between ownership of the card (plastic, dye and a magnetic stripe or an integrated circuit) and the information that underpins the card.

The Explanatory Memorandum for the Human Services (Advanced Service Delivery) Bill 2007 indicates that

The Bill will vest ownership of the card in the card holder. This is intended to provide greater choice to individuals about the uses to which they might choose to put the card other than for health and social service purposes. The card belongs to the card owner and he or she can use the card for whatever lawful purpose they choose.

Vesting provides the holder with ownership of the plastic, not of the data.

The proposed legislation does not give the individual rights over the data held by government agencies. Ownership of the card does not entitle the holder of that plastic to restrict how the data is used by government agencies, when it is used by those agencies, whether it is used and when it is deleted from any government database.

As with most property, including real estate, 'ownership' is not an absolute right. The owner of a card will not be able to sell the card to someone else (and use of the card to deceive people, whether in the private or public sectors, will of course be an offence under common and statute law). The owner will not be allowed to destroy the card, deface it or gift it to someone else.

The Explanatory Memorandum envisages that the government will secure ownership of the name of the card and an Access Card symbol.

section marker icon     cooption

Elsewhere on this site we have noted that driver's licences, passports and official concession cards have for many years been used by both public and private sector entities as primary forms of identification.

That use reflects their inclusion of a photograph, name and date of birth (or age). It also reflects perceptions that the particular identity document is likely to be authentic - a perception that some critics have noted is problematical, with for example the trade in forged drivers' licences and manipulation of 'proof of age' cards by teens - and that courts will accept use of those documents.

It is thus common to encounter requests that consumers identify themselves by displaying a drivers licence (or equivalent) when opening an account with a video rentals store, applying for a job, obtaining some items from a pharmacy, renting equipment or a house, using a gymnasium or gaining entry to a nightclub. Under the 100 Points regime a licence is, of course, a key identity document for opening a bank account.

It is increasingly common for organisations to take copies of those documents (eg make a photopy or scan a card) or abstract information (enter details on a database) for indeterminate retention and use.

Consumers are typically not forced to provide the identification and state/territory legislation generally features provisions prohibiting compulsory provision to unauthorised entities (eg businesses rather than police). Section 175(1) of the NSW Road Transport (General) Act 2005 for examples specifies that

A person must not (knowing that he or she is not by law authorised to require its production) demand production by another person of that other perso's driver licence. Maximum penalty: 20 penalty units.

That penalty has apparently never been applied.

In practice most choose to provide the identity document on the basis of convenience (it is easier than gaining and displaying alternative identification or using another retailer) and because familiarisation has lowered sensitivities about potential privacy abuses. Agreement to provide the identification often signifies acceptance of terms and conditions, including storage of the captured information and its provision to third parties. There has been little case law regarding efforts to restrict such uses.

Unsurprisingly, Subclause 6(2) of the Human Services (Advanced Service Delivery) Bill

clearly expresses the Government's intention that an access card is not a national identity card and is not to become a national identity card. However, if individuals choose to use the card for identity purposes they may do so.

A person will be taken to 'require' production of an access card if

they provide no reasonable option for a card owner to prove that they are who they say they are. That is, a person will contravene this clause if they require the access card as the only acceptable source of proof of identity.

In discussing action by officials the Memo notes that

an authorised person who copied a person's access card number for a reason that was not connected with the provision of Commonwealth benefits would commit an offence under clause 57, unless that copying was with the card owner’s written consent or was excused under section 10.5 of the Criminal Code Act 1995 (which would enable copying if that was justified or excused by or under a law).

section marker icon     national proof of identity

Protestations that the government services Access Card will not be a "national identity card" have become something of a mantra.

The government has not defined "national identity card". If we take such a card to be a document that

  • is issued to all adult citizens (and residents)
  • must be carried by those individuals (eg while driving, in the street, in restaurants, at work, at sporting and cultural events)
  • must be produced as proof of identity when requested by law enforcement officials and other agents of the state

the disavowals by government are legitimate. Claims that the card will be "an anti-Identity Card" are however nonsensical.

The Access Card will provide a key - if not the key - proof of identity in dealings with government.

It will also become the de facto national standard proof of identity in private sector interactions, replacing the drivers licence used by many Australians.

That use reflects -

  • legal permissibility - individuals can treat the card as their preferred proof of identity document
  • convenience - the card will be small and cheaper to obtain than a passport
  • expectations - the card is being promoted as technologically more advanced ("the smartcard" with "a biometric photograph and digital signature") and as more legitimate than drivers licences and most other existing identity documents
  • ubiquity - most adult Australians will have a card, in a standard format and with a photograph.

Will Access Cards be forged? The answer is yes.

There is a commercial incentive for people to manufacture and use fake cards as a proof of identity in private sector transactions (in much the same way that people use fake drivers licences for purposes other than identification when dealing with traffic police). Massaging an image and a bit of plastic so that it appears to an authentic card is trivial.

Most people in the private sector, lacking online verification mechanisms, will presumably take cards at face value. The user of a fake card that doesn't feature egregious errors (eg is the wrong colour or has a typo in a word such as 'Australia') is unlikely to be detected purely through use of that card unless the user is stupid enough to interact with a government agency or agent such as a doctor.

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version of February 2007
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