overview

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     police

This page considers access by federal/state police forces and other law enforcement agencies to cards and their undelying data.

It covers -

• introduction
• mixed messages

It is complemented by a discussion of Australian policing here.

     introduction

One focus of community anxiety (or polemic by card critics) has been access by police and other law enforcement agencies to -

• the card (ie requirement that an individual produce the bit of plastic)
• the database/s underlying the plastic.

Some of the criticisms about access are, at best, disingenuous.

Law enforcement officers have traditionally been able to request individuals to "assist police in their inquiries". As noted earlier and in the discussion of registration/certification schemes it is often a requirement that people carry authorisation (identity) documents while engaged in particular activities - or example carry a drivers licence while driving a car, carry an aviation security identification card while on duty in the civil aviation industry. Formal penalties for non-compliance with such requirements vary, as does their implementation on a day by day basis.

There is no requirement to carry ID at all times in other circumstances. However there is no formal right of anonymity and Australian courts have broadly expected individuals to comply with reasonable requests for provision of proof of identity, whether on the spot or on a retrospective basis.

Refusal to identify yourself after being apprehended while engaged in a burglary, rape or murder (none of which necessarily involve a licence) would thus not be regarded favourably. Inability - or direct refusal - to provide an identity document on request by police if stopped by police while walking in the street or visiting the National Library is likely to be addressed on the basis of the particular circumstances (and on factors such as the grumpiness of the magistrate, whether the officer was creative in finding an offence, and so forth).

Australian privacy legislation at the federal and state/territory levels typically features what critics characterise as 'back doors' and proponents label necessary provisions allowing access for the purposes of law enforcement and national security. As discussed elsewhere on this site there is no absolute protection for personal privacy regarding government and nongovernment data collection.

     mixed messages

As with the 1980s Australia Card, promotion of the 2006 Access Card has not been assisted by conflicting information from key government agencies.

March 2007 testimony by ASIO chief Paul O'Sullivan to the Senate Finance & Public Administration Committee regarding the card for example conflicted with testimony from other agencies. O'Sullivan indicated that ASIO would not need a search warrant to gain access to the national smart card photographic database.

Patricia Scott, head of the Department of Human Services, disagreed. She told the committee (PDF) that after talks between lawyers for ASIO and her department, ASIO could only ask her department for access to the card and if refused by the DHS would need to seek a search warrant.

   next page (attitudes)