Summary Offences (Biometric Identification) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 30 July 2015.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:08): It is with pleasure that I rise to speak on the Summary Offences (Biometric Identification) Amendment Bill 2015. Minister Snelling, on behalf of the Attorney-General, introduced this bill on 30 July this year.

Members interjecting:

The DEPUTY SPEAKER: Order! I want to be able to hear the deputy leader.

Ms CHAPMAN: This bill amends the Summary Offences Act 1953 and legislates in respect of the use of mobile fingerprint scanners by SAPOL. I will briefly refer to part 15 of the Summary Offences Act 1953 which sets out in an ever-expanding way during the time I have been here in the parliament the police powers of entry, search and the like, and covers a number of aspects. Obviously, members would be aware that police have general search warrant powers and there is a regime process that needs to be issued, form and in substance, set out in part 15. There is power to search suspected vehicles, vessels and persons, and that relates to circumstances where:

…there is reasonable cause to suspect that—

(i) there are stolen goods; or

(ii) there is an object, possession of which constitutes an offence; or

(iii) there is evidence of the commission of an indictable offence;

There is power to search land for stolen vehicles. There is power for police officers to board vessels at any time of the day or night, in certain circumstances. There is power to stop and search vessels in another set of circumstances, and there is power to apprehend people committing offences on board ships.

Then we have a whole regime process to implement the power to conduct metal detector searches. That is now under section 72A of the Summary Offences Act. We have 72B, which was inserted to provide special powers to prevent serious violence, and a regime for in what circumstances that can be implemented. Section 72C was inserted, outlining the general provisions relating to exercise of powers under sections 72A and 72B. Section 73 provides power for police to remove a disorderly person from a public venue as a consequence of general misbehaviour and a disorderly or offensive manner.

Section 74 provides for the power to enter licensed premises, and again that is able to be implemented even without a warrant, in the event that a person finds someone to be drunk and behaving in a riotous or indecent manner. There is a provision in section 74A for the power to require statement of name and other personal details, and that is the section which is immediately under proposed reform by the bill.

There are additions to this part in section 74AB which set out the circumstances in which a police officer may ask a person questions for the purpose of obtaining information as to the identification of a driver, etc., and significant penalties for failure to comply. There is an addition under section 74B for road blocks. As you would expect, senior police officers only are able to action this and, again, a regime setting out the circumstances in which a road block may be established in a particular spot upon there being suspicion of a commission of a major offence or the escape of somebody from lawful detention.

We have the relatively new provisions under section 74BAA for vehicle immobilisation devices and when an authorised police officer, again believing on reasonable grounds, is able to use a vehicle immobilisation device. It is fair to say that usually if a driver of a motor vehicle disobeys or is likely to disobey a signal to stop then this would be implemented. Sadly, all too often persons who are driving vehicles and refuse to stop end up in car chases by the police and this is a mechanism by which a device can be used to assist in, essentially, immobilising the vehicle so that that can cease.

Members would appreciate that that is a very dangerous activity and, unfortunately, all too many people who flee in these circumstances cause damage to property and sometimes to persons, sometimes even resulting in death. In any event, it is certainly a very dangerous practice, I have to say, particularly in an urban environment where there are so many other accidental victims as a result of the conduct of usually one person.

Finally, this whole part has been amended to provide for section 74BAAB, which provides for the use of detection aids in searches. Most commonly, as I understand it, apart from using metal detectors or other activities, electronic drug detection systems are employed, and of course we have the drug detection dogs who are very helpful in this area. From what has been a very significant development of police powers of entry and search under this act, they are now expanded to many different circumstances in which police can actually undertake a search or entry or require compliance with certain directions. It is fair to say, and I think quite reasonably so, depending on the severity of the potential outcome or risks in a person not being required to conduct themselves in response to a police request, that varies depending on how serious the potential risk is. Nevertheless, there are quite detailed obligations and thresholds that need to be covered before police officers can act in a number of these areas.

Let me return then to section 74A, which is the power to require a statement of a name and other personal details. Certainly this is an area which has expanded over the years. I am not so sure in the time that I have been here in the parliament, but certainly since early practice in the legal profession the obligation to provide someone with a name and address is a far cry from what is now in the legislation, and we are about to expand it a little further. Some of this is because of technological advance; some of this is because it is important that there be a specific provision for offences in the event that there is noncompliance, and that has been more customised I think over the years, together with the increase in penalties.

It is also important to note that police officers, in requiring the name or personal details from a party, have an obligation to any person who they seek information from for themselves upon request to produce his or her police identification or state orally or in writing his or her surname, rank and identification number. That is not being interfered with by this bill, nor should it, but I make the point that, whilst there is a process to be complied with for police officers to extract names and addresses from persons in certain circumstances, the obligation for the police to identify themselves is also there.

Personal details now include the person's full name, the person's date of birth, the address of where the person is living, the address of where the person usually lives, the person's business address, and:

if the police officer has reasonable cause to suspect that a person has committed, is committing, or is about to commit a sexual offence involving a child or children—the name and address of any place where that person works (whether as an employee, an independent contractor, a volunteer or in any other capacity).

To my recollection, that was introduced several years ago (but in the time I have been in the parliament) for obvious reasons in respect of the tightening of legislation surrounding sexual offences, particularly against children.

The bill before us does two things. Firstly, it expands the threshold upon which the reasonable suspicion enables the police officer then to act. At present, section 74A(1) provides:

Where a police officer has reasonable cause to suspect—

(a) that a person has committed, is committing, or is about to commit, an offence; or

(b) that a person may be able to assist in the investigation of an offence or a suspected offence—

I was about to say 'has been expanded', but I do not actually think that has been. What has been expanded is the next part, which then says:

…the officer may require that person to state all or any of the person's personal details.

However, now the bill, if applied, will require them to state all or any of the person's personal details and to submit to a biometric identification procedure. That is the nub of what this bill is about. I note actually, for the first time in my observation, that it makes provision for (c) and (d) but, in any event, if that is acceptable under the drafting arrangements I do not take any issue with it.

Returning to the bill, there is to be an insertion in respect of the data that is derived from biometric identification procedures, that it is not to be retained or stored for longer than is reasonably required for the purpose of carrying out a biometric identification procedure. It is proposed that there be a hefty penalty of $10,000 or imprisonment for two years. For obvious reasons, personal data under 'biometric data' and 'biometric identification procedure' has specific definitions inserted, and I will come back to those in committee.

The person who refuses to submit to this biometric identification procedure will be subject to an offence, which I am presuming—I am sure the Attorney will correct me—will have the same maximum penalty as identified of $1,250 or imprisonment for three months. The legislation before us is consistent with the government's 2010 election promise, and associated legislation was the follow-up in their 2014 election promise. The scanners were to be made available (that is, the sort of mobile fingerprint scanners, which I understand have now been issued to police) and the follow-up associated legislation was a 2014 election promise.

I am uncertain but I understand that there are about 150 of these devices already in police hands, and currently they are used but require the consent of the person who is requested to submit to it before they can be used. I would like to explore in committee with those who are here to answer questions when these devices were issued, the number of occasions that they have been used and/or at the very least to identify the number of occasions where there has been a refusal and therefore they have been unable to be used. So, someone who is listening to this may well wish to follow up some of that information.

The biometric identification procedure is to be defined as a procedure in which biometric data relating to a person is obtained by means of a photograph or scan (I am assuming that relates to the fingerprint only) and is then compared with other biometric data for the purposes of identifying the person. If there are other ways by which the scan is to be used other than for fingerprinting purposes, I would like some information in respect of that.

Under the proposed bill a scan of a person's fingerprint, assuming for the moment that is the only action that will be taken under the definition of 'scan', would be taken on the spot with one of these portable devices. That then sends the data to the National Automated Fingerprint Identification System (NAFIS). The NAFIS then issues some response confirming whether or not there has been a match and, if so, the person's identity and criminal history can appear on the screen.

As I understand it from the second reading explanation, the use of these devices does not contribute to the records held on the national AFIS database. So, we will see in committee as to how that might actually operate. The storage of the data, as I have said, creates a very significant penalty—two years' imprisonment, in fact—for someone who does retain this data beyond what is necessary, or as is specifically defined in the bill, with quite severe penalties.

As one would expect there are groups in the community who have been concerned about this. The SA Bar Association has confirmed that it opposes the bill on the grounds that it unduly erodes the civil liberties of persons, and the Legal Services Commission has suggested that the use of the devices should be confined to circumstances where the police have reasonable cause to suspect that a person has committed or is committing or is about to commit an offence, and not in the second circumstance, which is in the act and which allows for the police to have reasonable cause to suspect that a person may be able to assist in an investigation.

As I say, that second threshold of reasonable belief as to a circumstance that is to occur is already in the legislation, but the view of the Legal Services Commission is that if it is to be introduced then it should be confined; that is, a mandatory scanning or photographing of the person should only be confined to the circumstances where that person is in the category of committing an offence or likely to or otherwise as defined.

The only media reports that I am able to identify from when these mobile fingerprinting scanners were rolled out to the police back in February 2014, just before the election, suggested that it was important to recognise the usefulness of this equipment by having supportive legislation such as we are now dealing with.

The member for Stuart, who has had some involvement in this portfolio area, has made the point, and I think it is a very valid point, that there is not much point in having this technology if you cannot use it. In fairness, it is quite a valid point, but on the other hand the views of the Legal Services Commission also need to be given some thought. In any event, the government present this to us on the basis that it is an election commitment, so they are here to do so. We accept that there has been a reasonable consultation on the matter and that it is appropriate in the circumstances that we support the bill, and we will do so, but as I have foreshadowed, I will have some questions in committee.

Mr GARDNER (Morialta) (16:32): Speaking on the Summary Offences (Biometric Identification) Amendment Bill 2015, I do so obviously with an interest as the shadow minister for police. It is a matter that the police minister and I have discussed in a range of fora, including estimates, along with the police commissioner who provided some advice on that matter. It is also in relation to the portable fingerprint scanners, the use of which this bill seeks to make further enabled. I have also had the opportunity to be briefed by SA Police and, in particular, I thank those senior officers who took the time to do so.

In wanting to establish the nature of the tests that are sought to be enabled, or at least the compulsion that is sought to be enabled by this bill, my adviser, Ms Sarah Hennessy, and I attended at police headquarters and voluntarily offered ourselves to be scanned and tested. I inform members of parliament with pride, and not just a little relief, that the scan came up identifying 'no hit' for both of us, in fact.

The Hon. J.R. Rau interjecting:

Mr GARDNER: I am pleased that the Attorney-General is also as relieved as I was. In doing it, I did take some cause to think about this because the reason the bill is necessary is that, when police officers feel the need to ask a citizen for the scan, half of them say no. That is at the moment; that is according to the evidence provided at estimates, and I will read some of it a bit later and, indeed, the anecdotal evidence provided by police officers to myself and the officers conducting the briefing.

I had cause to think about why they might be saying no as I was being briefed on it. I had this moment of hesitation. I knew I was not going to get a hit; I knew I had never done anything that would possibly require a hit; and I had this unpleasant, uncomfortable sense in myself of, 'This actually doesn't feel very nice waiting to be judged in this way.'

We are in fact requiring our citizens to present themselves for judgement when a police officer not only has reasonable cause to suspect that a person has committed, is committing, or is about to commit an offence, but also, indeed, when the police officer has reasonable cause to suspect that they can assist with an investigation or a suspected offence. We are requiring that people submit themselves to this test without any longer having a reasonable cause to suspect that they themselves have committed or might be committing an offence. I support the bill, but I do not do so lightly, because I understand that a number of people have concerns with that.

I understand that the Bar Association has raised concerns and is opposed to the bill, and I understand that the Legal Services Commission has suggested a broader aspect; that is, where it is reasonably felt by the officer that a citizen might assist with an investigation or suspected offence, such a person should be excluded. We do take this very seriously and we do think long and hard. Ultimately, there is always this tension between the requirements of our community to have a safe community and one where civil liberties are protected. The question is: is it an unreasonable requirement that we ask our citizens to assist police in this way? Obviously, the opposition has, on reflection, agreed with the government that it is reasonable, but it is not appropriate, I think, to do so lightly.

The amendments to the Summary Offences Act that this bill entails provide for the use of mobile fingerprint scanners by SA Police. These scanners are an item of kit that was promised by the government in the 2010 election, and they have been operating for some time. I know that there are many people who read the Hansard who also delight in reading the budget papers in detail, so I will direct them to the area in the police portfolio statements where they are described every year as 'high-tech crime-fighting equipment'. It is always a delightful read, it is an interesting read. Certainly since I have been reading the budget papers there are always some delays; so I asked the minister this year:

Why has the high-tech crime-fighting equipment, identified in last year's budget for completion by June 2015, been delayed to 2016 in this year's budget, and will all of it be delivered on time?

The minister answered:

The high-tech crime equipment involves a range of projects, including the portable fingerprint scanners—

and he goes on to list some others, stating:

Some of those things have been implemented—not all have. In one area we need some changes to legislation to enable them to be implemented as well.

He then goes on to explain that fingerprint scanners are entirely in voluntary use at the moment. The minister identified that the fingerprint solution won the 'inaugural Premier's award and was the runner-up in the 2000 national awards too'. I assume he means the 2010 national awards. So it is a good scheme but obviously one where it was not able to be fully implemented because people were not required to provide their fingerprints if asked.

Moving on from what the minister said about it, because he then goes on to say that they need legislation, the Commissioner of Police, Grant Stevens, made some comments that I think basically sum up the police's case for this bill. He states:

…we do not have the specific numbers on how many times it is refused, but we can say that, whilst in a voluntary capacity, it is assisting operational police in identifying people who happily submit to that process, and it eliminates the need for some people to be apprehended on the basis of unable to confirm their identity, and it also eliminates people from being unnecessarily arrested for warrants and other matters like that if we are able to clarify the identification in the first instance.

Clearly, these scanners have been providing a useful purpose up until now. However, the anecdotal evidence—and it is only anecdotal evidence; as the commissioner said, they do not have the specific numbers—suggests that half the people asked are declining. Obviously those people who are wishing to prove who they are and that they are not who they might be suspected to be are using it and coming up with no hit as identified.

Some people are obviously just relaxed about providing when asked, and that is great, and then there are some people, I understand, who, despite the fact that they are on the NAFIS database, are still voluntarily offering themselves, and police are getting some people to identify themselves through the fingerprint scanners voluntarily, even though it perhaps might not be in their own best interest to do so, as they do not need to. However, there is still that cohort who do not.

There are some people who this will enable us to catch, and that is good. There are some people who are going to be upset when they are informed that they will be required to submit themselves to these scans. I hope that those people will understand that this parliament does not ask them to do that lightly.

I note that the definition of biometric data will enable, in the future, forms of biometric identification to be used other than just the fingerprint scanning under the National Automated Fingerprint Identification System and, at that time, regulations can be introduced. I will certainly be paying close attention to such regulations, if they are introduced, and I think it behoves all of us to do so. This is a fairly new direction for the interface between technology and the law and something that certainly, as identified, makes some people uncomfortable, so I trust that things will not be added to that regulation lightly.

As the Attorney-General said in his second reading speech, the wider use of mobile fingerprint scanners by police is expected to improve identification rates, reduce the incidence of people avoiding being identified and allow for identification while police officers remain in the field. I think that this will save police officers on the beat a lot of time and angst and, in that way, it is certainly going to have the opportunity to make a positive step towards officers doing their job. I think that it will, in a practical sense, benefit the community and improve public safety.

It is very important that section 74A(4a) makes it an offence if data is stored for longer than reasonably required to complete the identification procedure, with a significant fine. I think the maximum penalty is a $10,000 fine or imprisonment for two years, if somebody does so. That is very important in protecting people's personal data so that it is only used for the purpose for which it is meant, and I commend the inclusion of that measure in the bill.

I think that the safeguards are suitable. The use of these devices does not contribute to the records held on the National Automated Fingerprint Identification System database in any way. It is very important for people to understand that because I know that, when there was some media in relation to this matter, looking at the comments on the media sites where members of the public who, upon being informed that this might be coming in, put in their contributions, there were many theories about what might happen to these fingerprints which would be illegal under this provision. There were many theories and suspicions about government taking people's fingerprints and using them inappropriately.

I am satisfied that this bill does not enable that to happen, and I hope that members of the community will be too, but I identify that I am not sure all of them will be. All we can do is say that the police must abide by the law, as I am sure, in South Australia, they will. With those few words, I look forward to the contribution that this bill will make to improving public safety in South Australia and to making the jobs of some of our brave police officers easier. Hopefully, in actuality, it will in fact make it a more efficient system as well.

I support the bill. I thank in particular the shadow minister (the Deputy Leader of the Opposition) for her detailed work in preparing the opposition's position, and the articulate, concise and forensic way in which she set out the opposition's case in her comments. I also thank the member for Stuart who, as on so many occasions as a former shadow police minister, has assisted me in my understanding of these matters, and I look forward to hearing his remarks on the matter as well.

Mr ODENWALDER (Little Para) (16:44): I will make a very brief contribution to this debate. Of course I support the bill, and I have listened with interest to the other speakers, particularly the deputy leader, and some of the remarks of the member for Morialta I agree with wholeheartedly. I had the good fortune to visit the UK Home Office back in 2012, after they had piloted a very large rollout of similar technology.

The police minister at the time—in fact both parties—had committed in the previous election to rolling out this technology and I was very interested to see how it worked in the UK. So I met with the project manager and he went through the program. They rolled out 12,000 mobile fingerprinting devices to police forces across England and Wales.

Without labouring the same points that everyone else has made, the member for Morialta is right: it is very much about efficiency; it is not so much about gathering information, of course, and there are very strict safeguards in the bill to prevent that happening unnecessarily. But it is about efficiency, and it is about making very quick identifications. Often the main feedback from the UK police was that they were arresting people simply to make identifications and that is certainly true of my experience as well, so you are saving hours and hours and hours of police person time.

With those few words, I look forward also to hearing the member for Stuart's contribution. I know that he has made many good contributions on this area of policy in the past, and I look forward to the speedy passage of this bill.

Mr VAN HOLST PELLEKAAN (Stuart) (16:46): It is a pleasure for me to contribute to the Summary Offences (Biometric Identification) Amendment Bill 2015 on behalf of the people of Stuart and the opposition, and I note the contributions of the member for Little Para, a former police officer, so he knows things that none of us do about this type of work; and of course our deputy leader, the member for Bragg, as shadow AG (attorney-general), and the member for Morialta, the shadow for police.

It is worth pointing out I think at the start that what we are talking about at the moment is fulfilling the Labor government's 2010 election promise, so it has been quite a long time in the making. As the member for Little Para said, both sides of politics have supported this development but, back in the lead-up to the 2010 election, the government said that if successful in 2010 they would do this. So here we are in 2015 and they are getting to it, and I think that is slow but positive.

It is also interesting to note that, in that time, we have had five different police ministers. Whether that has been part of the problem or not, I am really not too sure. I am sure that every one of them was committed to this program. It might well be the fact that when they made the commitment they may not have been fully aware that they actually needed to change the law to make these biometric scanners useful in that everybody who the police would like to have scanned would have to be scanned.

One way or the other we have got to where we are today and, as our lead speaker, the deputy leader and member for Bragg, said, we certainly support this, not without some hesitations and I think that they are probably hesitations that members opposite would have as well, but on balance we have certainly come to the conclusion that we are very supportive of this.

Just for people who might read Hansard, I will make a very brief summary of what we are really talking about here and that is, if a police officer has reasonable cause to suspect that a person has committed, is committing or is about to commit an offence, or that a person may be able to assist in the investigation of an offence or suspected offence, the police may require that person to state all or any of their personal details. In the above circumstances, a police officer will also be able to require that person to submit to a biometric identification using a mobile fingerprint device.

So, the officer has the choice whether to do that and I think that is very important for people outside this place to understand. The officer can ask the person they believe may have committed a crime or may even be able to help solve a crime for their details, and if the officer chooses, then the officer would be able to require that they submit to that biometric identification using a fingerprint device.

There are currently 150 of these devices in use, but they require consent before they can be used, so that is really what we are about at the moment: trying to shore up the fact that the police officers can require that identification to be given. As the member for Morialta explained, there is a range of different outcomes at the moment with regard to how those requests by the police are met. Some of them seem quite sensible and some of them seem quite silly, some of the ways that people choose to respond when requested by police at the moment.

If we get to the stage, as I hope we will, where police are able to require that test, one of the most important aspects about this is that the bill creates a new offence for inappropriate retention and storage of biometric data. It provides that a person—that is, a police officer—must not retain or store biometric data for longer than is reasonably required for the purpose of carrying out the biometric identification. That is certainly not everything that is in the bill but they are the key components to it as far as I am concerned and I think that it is fair for police to have this ability.

I know that there are a lot of people in the public who are very concerned about civil liberties, as I am sure every member of parliament is concerned about infringement upon civil liberties. I personally do not consider that a deprivation of my civil liberties; in fact, I would be the sort of person who would say up-front you could have my fingerprints or you could test me in one way and I will be on the register and then hopefully I will be clear and clean. If ever there is any suspicion, you will know I was not involved. You will know that it was not me, or it was not him. However, not everybody takes that view and not everybody needs to take that view. I have close friends who take the very opposite view and say, 'No, I do not need to provide any personal identification unless they have beyond reasonable doubt a suspicion that I am connected.' A range of different views are out there, and I have expressed clearly how I feel.

I also believe strongly that police deserve to be supported in their work. It is incredibly hard work being a police officer. It is incredibly frustrating work at times being a police officer. I trust police. I do not think that they are perfect, I do not think that they are infallible. I do not think in over 4,500 police officers operating in our state that there is not one somewhere who might accidentally or deliberately do the wrong thing, because they are human just like us. Overwhelmingly, I trust the police and would be comfortable with their being able to ask me for my identification and, if I chose not to provide it for whatever reason, to require me to give them proof of my identification. I think that the overwhelming majority of people I represent in the electorate of Stuart, or across our state for that matter, would have a similar view.

The other thing that is very important to this bill is the IT systems. We all know that legacy IT systems in SAPOL cause a great deal of stress and concern for police officers from the most junior through to the most senior within SAPOL, and that is actually critical to what is going on here because we are talking about a private person providing proof of identity that is matched to a database. The police are incredibly under supported, unfortunately, with regard to the quality and calibre of the IT systems that they work with across the very wide breadth of work that they do. I think rarely that results in inaccuracy, I know very regularly it results in inefficiency, and I want to put on the record that getting an IT system in place that can support this new law that we are talking about creating is going to be very important to making this happen so that the right things can happen in the right way when police use this new authority that they will have.

Right now there are endless examples of where police, unfortunately, operate inefficiently, not because the individual officer or officers are inefficient but because of their double, triple or quadruple handling of information (sometimes), having to enter the same information in different computers and all that sort of stuff. That is when honest mistakes can be made. That is when, unfortunately, a human being can enter the same information intending to put the same information into four or five different fields of computer systems and on one of those occasions makes a mistake. That can happen.

If mistakes are made in this area of work then not only does it make the police work inefficient, not only does it potentially lead to errors, potentially very serious errors with regard to identification, but it also supports the arguments of the extremely strong civil libertarians who oppose this because of those sorts of mistakes. I want to put very strongly on the record that people are entitled to their views, and I respect that, whether somebody says, as I have, 'Look, please have as much personal information as you want because I think that will make me feel safer,' or if somebody says, 'No, I don't want you to have any of my personal information because if you have it I will feel less safe.'

Everybody is entitled to have their own personal view, but what is indisputable is that if the systems that back up procedures and back up the laws are not efficient for any reason or are inaccurate for any reason, not only does the whole system fall down, but the people with the very strong civil libertarian views are actually, on occasion, proven to be correct as well. I want the police to be able to get on and do their work to the very best of their ability so that they can protect us, prevent crimes, apprehend people who have committed crimes and make South Australia the best and safest place it can possibly be. I have no hesitation in supporting this bill, but I urge the government to give the police the resources they need so that they can use this new authority as effectively and efficiently as possible.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (16:57): I thank the members who have contributed to this debate. I say to the member for Stuart that much of what he has said just now is something which has been very much on my mind and on the minds of all of us on this side. We wish to support the police. We wish to take reasonable steps to make use of technology which is becoming, essentially, ubiquitous in our community. For example, while I was thinking about this I looked at this new machine that my office made me get a while ago.

Ms Chapman interjecting:

The Hon. J.R. RAU: Yes, but this is a new one. My old one had real buttons, Madam Deputy Speaker.

The DEPUTY SPEAKER: You felt comfortable with buttons.

The Hon. J.R. RAU: I felt comfortable with it. I felt I knew my way around it. This one does not have any buttons at all. It is just a blank front thing and you have to press the button to make the lights come on, but guess what? This machine takes your fingerprint to get in. Somebody in my office said, 'Just put your finger here,' and then they said, 'Do it four or five times,' and next thing I know I cannot get into this thing without my finger.

The DEPUTY SPEAKER: How else do you normally manage to get into your phone, sir? Don't answer that.

The Hon. J.R. RAU: Normally I have a button, I used to have a button, a red button.

The DEPUTY SPEAKER: But you used your finger on the button, didn't you?

The Hon. J.R. RAU: I used to put my finger on the—anyway, the point I am making is that I used to be able to get onto the interweb with a big red button and now I do not even have a button, I do not have either thing. I am just making the point that, if you have that sort of technology in everyone's handbag or, in my case, my pocket, then is it not time that we were actually embracing the idea that the police should have access to some of this technology in order to further their legitimate interest in making our community safer?

For that reason, I am genuinely very pleased and I would like to say thankyou to the opposition for expressing the support that they have about this matter. I think it is in the community's interest that we do express this support. I agree in particular with the member for Stuart about the importance of us obviously making sure that the police (who, I agree with him, are overwhelmingly well-intentioned and dedicated people) and their management keep an eye on how this sort of technology is being used, but I am confident they will do that.

There were some questions I think the member for Bragg raised which I might be able to provide some information about. This is information I have been given, obviously; it is not information which I know of my own knowledge. I have been advised that, in a five-month period from February to June of 2014 (and this is a representative sample for the benefit of those opposite), 248 people voluntarily agreed to submit their fingerprints for an identification check. The results of the 248 checks were 128 no hits and 120 hits. There has only been one reported incident of someone refusing to submit their fingerprint. Feedback from police officers indicate the use of fingerprints is well received by both officers and the public and a number of warnings, reports and arrests have resulted from a hit. That is the end of that little piece of information.

Essentially, the way I looked at this when I was trying to come up with the way we would assemble this piece of legislation was this. If we have a circumstance where a police officer could legitimately request an individual to provide a fingerprint, or where they could legitimately request or require a person to provide their name, address and whatever to be able to verify whether or not the individual, in making that statement to the police officer, was telling the truth or not by reference to an independent separate database in circumstances where the check involved simply a noninvasive placement of a fingerprint over a device and then the image itself was not retained for any other purpose, it seemed to me that that just added integrity to the process of a police officer asking a question or seeking identity information from an individual.

Provided all those safeguards are wrapped around it, it seemed to me, if they are going to be asking that question anyway, should we not be supporting them as much as we can to make sure the answer they get is verifiable on the spot if possible? To some extent, that is what this delivers, although of course I guess if we have a person who is not on the register who does give a false name, this does not help us, but chances are they are not the people we are so worried about probably anyway.

I do acknowledge the point made by the member for Morialta that even a person who has nothing to fear may feel that it is a bit of an intrusion or a bit intimidating for them to be asked to do this, because you would think, 'What if there is some mistake in the machine and they think I'm Mr von Einem or something?' You do not know, but you might be worried about these things happening, and I think that is a legitimate point, and some people possibly will feel apprehensive for that reason, but hopefully once this thing settles down and is out there, people will lose that sense of discomfort about whether this is likely to lead to a false positive, if you like, for individuals.

As I said, I do very much appreciate the support that the opposition has expressed today for this. I do think this is something which is in the interests of community safety and is in the interests of supporting our police. I do acknowledge that it is our expectation collectively as members of parliament that the police will accept the fact that this is a new tool we are giving them and we expect them to use it with the appropriate degree of circumspection and with appropriate safeguards, and I am confident, as I think the member for Stuart and others are, that they will do their very best to deliver on that.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms CHAPMAN: I thank the Attorney for some of the information provided as to data for the first five months of last financial year. Assuming that is illustrative of the next 12 months, we are talking about perhaps three people who have said no since the introduction of this. Would that be right?

The Hon. J.R. RAU: I only have that information that I have provided. I would assume that that is not an unrepresentative period, but I do not have to hand any other information, so I cannot actually confirm that that inference is borne out by other figures. All I have is that piece of data.

Ms CHAPMAN: At the moment, just so I am clear about this, this piece of equipment scans the fingerprint, it identifies the 'hit, no hit' as we understand, as to whether that fingerprint does match up with the name of the person, if they are on the database. Of those who have refused to date, what action is then taken in respect of fingerprinting them, if at all?

The Hon. J.R. RAU: I think the answer to that is that, presently, there is no compulsion for individuals to cooperate, so I guess the officers would fall back on whatever existing mandatory measures they might have available to them, but I just make that assumption.

Ms CHAPMAN: What are they?

The Hon. J.R. RAU: It would depend on the context. Various pieces of legislation give them the entitlement, for example, to ask for a person's name and address or whatever. I guess one would look to that legislation to ascertain whether there is an offence of refusing to give a name and address or not, or whether, in the event of the refusal to give a name and address, some other thing becomes operational, like for example—

Ms CHAPMAN: That is what I am asking. What is available?

The Hon. J.R. RAU: I am advised that the option then basically comes to arrest the individual and I guess they would then be taken into custody. I guess at that point they would be able to get a fingerprint.

Ms CHAPMAN: I am assuming that there has not been a sufficient level of refusal to alert the government to this being a real problem for the police, because we are here in September 2015 and it does not sit with any urgency. Is that why it is 18 months or 20 months since the election that we are dealing with this?

The Hon. J.R. RAU: I do not believe that is the case. This is something we have been working through. I certainly have spent a lot of time talking with those who advise me in the policy and legislation area in AGD about this, because there were a number of alternative mechanisms we could have used to achieve the outcome, with varying degrees of compulsion. We explored what the alternatives might be and we ultimately landed on this. The promise was biometric scanning, yes, but that really does beg the question as to 'in what circumstances?' and so on. We did spend quite a bit of time working on the question of exactly in what circumstances this would apply.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

Ms CHAPMAN: Clause 4 proposes under new subsection (1)(b) and under the reasonable cause to suspect provision that it can include 'be able to assist in the investigation of an offence or a suspected offence'. As the Attorney is aware, the South Australian Bar Association and, I think, even the Legal Services Commission, raised the question of this going a bit too far to the extent of winding it back for the purpose of the testing process to be only if the person has committed or is committing or about to commit an offence; that is, there has to be some primary target involving that person perhaps to be useful in other areas. Did the Attorney consider that and reject it or not consider it at all?

The Hon. J.R. RAU: I believe I did. This has been evolving over a period of time, but I believe I did turn my mind to that. It strikes me that, given that the only element of compulsion, if you like, about this is to get a person the police have reasonable expectations might be able to assist in an investigation of an offence or suspected offence to actually have an identity check, nothing more. It strikes me that the potential risk of that causing any trouble is basically zero.

To be perfectly frank—and this is leading us on to a different track for a moment, if I can go off into a slight digression—sooner or later if we are serious about reforming our criminal justice system here and getting to the point where we have a streamlined system where those people who genuinely have an issue to agitate with the court get an early trial and those people who are just basically sitting it out to try to see whether they can beat the system stop doing that, we are going to have to start confronting issues about prosecution and defence disclosure. Some of those things will be confronting to some people, and I think I have alluded to this in our major indictable reform paper that we have sitting out there now.

What has been okay in the past for the prosecution—and I am not being disrespectful of police or the DPP here, I am just stating the facts—where they could just roll in with something relatively cursory (sometimes even less than that; not even the apprehension report) and say, 'Well, look, here it is. How do you plead?' That is not really good enough. And if they do come in with something which is decent and comprehensive and does inform the defendant pretty fully about what their charges are, the defendant should be in a position where they actually say, 'Well, I agree with that. I don't agree with that. I'm going to fight you on that. Yes, you've got me on that', or they say, 'Look, I want to plead guilty', or they say, 'Off we go to trial.'

I think that we are moving in the direction where this is a very modest proposition that somebody who the police think can help with an investigation of an offence is basically asked a question, 'Who are you?' and whether or not they are giving an accurate answer to that question is verifiable by means of this biometric test. I do not see that as being an invasion of any reasonable definition of what is a right.

Ms CHAPMAN: We will probably disagree on that, but can I just go to the data storage. What is the process at present in respect of removal of this from the database? I presume that we have had 2,000 of these done in the last 18 months, or so. Has this material been removed?

The Hon. J.R. RAU: Again, as you might have gleaned from remarks I made earlier, technology is not my long suit, but my understanding is that this image does not ever make its way onto the database held by CrimTrac. What happens is that the image is held on the portable device. A question is asked by the portable device, 'Does this thing on my device match anything you have got in CrimTrac?' And the answer is either yes or no, but the image on the device does not get imported or transported or exported, whatever the term is—are any of those terms right?

Mr Odenwalder: Uploaded.

The Hon. J.R. RAU: Uploaded, there it is. I knew there was a fancy word for it. It does not get uploaded elsewhere.

Ms CHAPMAN: Hence why I am asking about it.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: We are just about to introduce a penalty which will give two years' imprisonment for storing data beyond its reasonable purpose of being required.

Mr GARDNER: The bill does not presuppose only the current item of technology we are using; the bill allows for any such item.

The Hon. J.R. RAU: All I can say is that we are deadly serious about this point, because this is a very important point in my opinion. If the Law Society and others were going to get agitated about something in this bill, not having this in it would be worth getting agitated about. Just like you cannot go around randomly collecting people's DNA, you should not be able to go randomly collecting their fingerprints either.

This is a matter where the police are going to have to manage this because it is going to be their people who are potentially liable if they infringe this. My understanding is, though, that the technology they are using does not involve the actual storage of the image they take in the field, so to speak. It acts as a comparative between whatever their device in the field is showing and compares then to the CrimTrac database, there is either a match or there is not, and then that image is disposed of.

Ms CHAPMAN: That is what I am asking: does it automatically lapse in the piece of equipment that we are talking about, or does it stay in storage until you go 'delete, delete, delete' at the end of your shift?

The Hon. J.R. RAU: Luckily, because I have advice here today, I can answer that—and only because of that. Apparently, the next image that is used destroys the image that is on the machine, so the next time you go to use the machine, whatever was there before is destroyed.

An honourable member: It writes over the top.

The Hon. J.R. RAU: Yes, that is what I am told.

Mr GARDNER: I think this is a question to which I hope I know the answer, but I hope that the Attorney's answer will potentially give comfort to some of the people who do have concerns. Where a police officer must have, under this clause, reasonable cause to assume that somebody is able to, in the broader application, 'assist' in dealing with any crime, is it the Attorney's understanding that it would, therefore, be in breach of this clause if any officer were to, what might be considered to be, officiously require somebody to give their fingerprint in a case where they could not be directly recognised as having any involvement or engagement or witnessing to any crime; it could not just be required of somebody for a casual purpose, for an incidental purpose, or for a spurious purpose?

The Hon. J.R. RAU: I understand exactly where the member for Morialta is going, and I can confirm that, from my point of view, that is exactly the case. We have situations at the moment where police are required to actually say that they have a reasonable suspicion of something before they issue a warrant, for example.

Ms Chapman: Reasonable cause.

The Hon. J.R. RAU: Reasonable cause, so they have to go somewhere and go to a court, or they might have to go to a senior officer and then they later have to have that verified by going to a court. The notion of there being a reasonable suspicion, or whatever the case might be, is something with which the police are already familiar, and they do execute that type of thing all the time. In those circumstances, theoretically, a bad police officer could abuse that already. I do not believe there is any evidence that that is happening on a substantial scale, or at all.

The second point I would make is: where is this going to be used? The answer would be that police believe an offence has occurred or needs to be investigated, and they believe that there is a person who might have information about that offence to whom they wish to speak. They find a person, and they say, 'Are you the member for Morialta?' The person replies, 'I don't want to say anything.' Their position is, 'We think, even though you don't necessarily figure in our consideration as a suspect, per se, we do think you might have been in a position where you could help us by having been proximate to when this thing happened'—or something.

What we are saying here is in that circumstance they can say, 'We think you can help us with the investigation. Are you whoever?', and the person does not want to cooperate with them even to say who they are. Then they say, 'We'd like you to put your finger on here and we'll see whether we know who you are anyway,' or they say who they are and the police say, 'Do you mind confirming that? Can we just check?' That is it.

I am pretty confident that this will not be something that will be abused and, I have to say to the member for Morialta, if we got any suggestion that it was being abused I would be very concerned about that, and that would be a matter that I think all of us in this place would perhaps be warranted in taking sufficiently seriously to have another look at this piece of legislation, but I do not expect that is going to be a problem.

Ms CHAPMAN: On the biometric identification procedure, as has been pointed out, we are not just talking about these scanners; we are talking about other equipment, including taking a photograph. Can I inquire as to whether there is any other equipment around that is being used, apart from a camera, obviously, with which a photograph is taken, or is there any other equipment such as iris or eye scanners or anything else that is proposed to be introduced by regulation?

The Hon. J.R. RAU: Again, a very good question. I am advised that the actual definition of biometric identification procedure contains within it an element of future proofing.

Ms Chapman interjecting:

The Hon. J.R. RAU: The only thing I can offer you is that there is technology around the place, and I have seen demonstrations of this, which is facial recognition-type material. I do not think we are at a point in time, either in terms of the technology or the available funds, where that is anytime soon, but I know that it has been employed already in areas like border protection and other types of scenarios. Potentially, that is the type of area this could go to, but at the moment, as far as I am aware, we are talking about these fingerprint imaging machines.

Clause passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (17:22): I move:

That this bill be now read a third time.

Bill read a third time and passed.