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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-11-17 Daily Xml
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Summary Offences (Biometric Identification) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 29 October 2015.)

The Hon. J.A. DARLEY (17:12): I rise to speak briefly on the Summary Offences (Biometric Identification) Amendment Bill. As outlined by other honourable members, the bill amends the Summary Offences Act to enable the use of mobile fingerprint scanners by police. More specifically, the proposed changes will enable a police officer to require a person to submit to a biometric identification procedure, a requirement which will exist in addition to the current power to require a person to provide their personal details.

The requirement to submit to such a procedure will apply in instances where a police officer has reasonable cause to suspect that a person has committed, is committing, or was about to commit an offence or that a person may be able to assist in an investigation of an offence or a suspected offence. In terms of safeguards, the bill makes it an offence to inappropriately retain or store biometric data for longer than is reasonably required for the purposes of carrying out the biometric procedure.

The Hon. Andrew McLachlan and the Hon. Mark Parnell have summed up well the concerns that these changes pose. Perhaps most concerning is the breadth of the proposed changes in terms of their application to those persons who may be able to assist in an investigation of an offence or a suspected offence, and also the lack of clarity around what 'no longer than is reasonably required' means in the context of retaining or storing biometric data.

My colleagues have placed on the record a number of pertinent questions, in particular in relation to these two aspects of the bill. For the record, I indicate that I too will support the second reading of the bill but will reserve my final position until answers to those questions are provided by the government for members' consideration. I note also that the Hon. Andrew McLachlan has recently filed amendments dealing with these very issues. I intend to consider those very closely before the committee stage of the debate.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (17:14): I thank honourable members who have contributed to the debate so far. The purpose of this bill is to provide police officers with wider powers to assist with on-the-spot identification of a person whilst the police officer is remaining in the field. This bill will enable police to use mobile fingerprint scanners to assist in the verification of a person's identity to ameliorate the problem of people providing false personal details. In answer to the questions raised during debate, I can provide the following information.

In relation to the question about police procedures when handling the device, the proposed legislation is essentially an extension of the existing authority to ask a person their name and address as per section 74A of the Summary Offences Act. The training and instruction will be similar to the instruction given relative to police exercising their authority to request a person's name and address as per the Summary Offences Act. An officer opens the fingerprint scan application, scans images of up to four digits for a person and sends the scanned images to the National Fingerprint Identification System for comparison against the fingerprints already stored within the National Fingerprint Identification System.

If there is not a match between the fingerprints stored on the NAFIS system and the scanned images, then a no hit result will be returned. If there is a match between the scanned image and fingerprints stored on the NAFIS, then a hit result will be returned with information relative to that person. Neither the scanned images nor the personal details provided from a hit result (name, age and date of birth) are retained.

In relation to the question about whether there was any chance of inadvertent storage of fingerprints, I am advised that the portable fingerprint scan device has been designed not to store any of the images or the personal detail in the returned results.

In relation to the question about how someone's fingerprints may be cleansed or deleted from the device, I can provide further advice from SAPOL and clarify how this process works. The technical system is designed so that the scanned fingerprint images are bundled and transmitted to NAFIS and are then overwritten when the hit or no hit result is returned. Therefore, the scanned fingerprint images are automatically deleted and are not stored on the device. Additionally, the scanned fingerprint images are automatically deleted by the system if there is an interruption in power supply or a transmission fault.

In relation to the question about whether there is going to be an audit of these devices or some sort of audit of the practices on an ongoing basis, I can advise that the system has an inbuilt audit capacity in relation to usage. There is capacity to establish which individual officer conducted the scan and when. The technological design of the system precludes storing the scanned images or personal details (name, age or date of birth) of the returned results. If the legislation is passed, the legislative authority for police to require a person to undertake the scan will be the same as existed for many years in relation to asking a person to provide their name and address.

In relation to the question about the new offence prohibiting a person from storing data and who would most likely be charged, the system is designed not to retain the fingerprint beyond the scan or, if there is a match, the personal details. The authority to require a person to undertake the scan would be exercised by the officer in line with the legislation. Apart from that legislation giving the authority, the existing SAPOL conduct and disciplinary processes would apply. The external police ombudsman process would also be available should a member of the public believe that police had acted outside of the legislative authority.

In relation to the question about how many occasions members of the community have been asked to voluntarily provide their fingerprints and how many have refused, I can advise that the mobile fingerprint scanners have been in use since early 2014, initially on a trial basis. They are currently used in high public use areas by Hindley Street patrols, the Public Safety Transport Branch officers, patrols in some large shopping centres, and some Neighbourhood Policing teams.

As there has not been a legislative authority to require a person to be scanned, all use has been voluntary. Between 1 July 2014 and 28 October 2015, there have been, I am advised, 724 voluntary fingerprint scans undertaken resulting in 341 hits and 383 no hits. As the entire framework has been voluntary, the number of people who have not wanted to have their fingerprints scanned voluntarily has not been recorded and is unknown.

In relation to the question about how many occasions police have needed this system or some other system where they needed to provide identification in addition to laws already in place, I am advised that SAPOL has not captured this specific information. Anecdotally, persons of interest who are actively trying to avoid police typically do not carry any form of identification and tend to give false names. For the last five years, until 30 September 2015, SAPOL have reported or apprehended 4,313 people for providing a false name or refusing to provide their name and address as per section 74A of the Summary Offences Act 1953.

In relation to the question, 'How many prosecutions have been made under the Criminal Law (Forensic Procedures) Act for offences of unauthorised storage of a DNA profile?' I am advised that there have not been any prosecutions of this kind in the last five years.

In relation to the question, 'How many apprehensions or arrests or warrants has South Australia Police made in the last five years due to an inability to confirm identification?' SAPOL has provided the following figures based on apprehension reports submitted: in 2009, 664; in 2010, 674; in 2011, 651; in 2012, 710; in 2013, 634; in 2014, 581; and in 2015 (until 30 September only), 399.

In relation to the questions, 'What will police officers be required to explain to suspects before they can exercise the power? For example, will they be required to explain the reasons for the prints being taken and the power under which they are being taken and that their fingerprints may be subject to a speculative search against other fingerprints?' SAPOL has advised that, when challenged, officers will explain the use of their authority to request name and address under section 74A of the Summary Offences Act. The same application will apply when exercising their authority to use the portable fingerprint scan.

In relation to the question, 'Are police officers going to be required to delete the image once the procedure has been conducted, or do they wait until they conduct the next identification procedure and wipe out the older one?' SAPOL has advised that officers can exit from the search, which wipes out the images and detail to perform another search, or officers can exit from the application, which wipes out the captured images and detail of the previous search. Once the images are submitted for matching, they are deleted from the device automatically. If the officer wanted to resubmit the images, they would need to rescan them.

In relation to the question, 'How instantaneous is the response from the national database?' SAPOL has advised that responses typically are returned within 60 to 90 seconds. In relation to the question, 'When the fingerprint image is deleted from the mobile unit, does the device retain the deleted data in a backup drive?' and I use the example of photocopiers, which often retain images for long periods of time, SAPOL has advised that the deleted data is not backed up.

In relation to the question, 'What happens when a new device is being used by the police? How will parliament know that this new device has the comfort of sufficient operation that fingerprints will not be retained inadvertently into the future?' we received some assurances in the other place, but this is in relation to existing equipment that is being used. I am advised that the solution design for the portable fingerprint scan prevents this from occurring.

The use of the device is for frontline officers to establish the identification of a person of interest so that the officer can make informed decisions as to how to progress the interaction with that person of interest. The taking and storing of fingerprints on the NAFIS is appropriately catered for in other legislation. Any new devices would have to comply with the limits contained in this legislation.

I am aware that amendments have been filed by the Hon. Andrew McLachlan in relation to this bill. The government will consider these amendments and be in a position to respond to them at the committee stage in the next sitting week. I commend the bill to the council and look forward to the second reading. I understand we will then go to clause 1 to enable honourable members to put any other questions they might have on the record to be answered at a later date.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. A.L. McLACHLAN: I move:

Amendment No 1 [McLachlan–1]—

Page 2, after line 25—After line 25 insert:

(2a) Section 74A—after subsection (2) insert:

(2a) Despite subsection (1), a police officer may only require a person to submit to a biometric identification procedure under subsection (1)(d) if—

(a) the person has refused or failed to comply with a requirement under subsection (1)(c) to state all or any of the person's personal details; or

(b) after requiring the production of evidence by the person under subsection (2), the officer is not reasonably satisfied as to the identity of the person.

(2b) Before a biometric identification procedure is carried out in respect of a person, a police officer must inform the person of the following matters:

(a) that the police officer is exercising a power under this section;

(b) the grounds on which the person is required to submit to the biometric identification procedure;

(c) the manner in which the procedure will be conducted and what directions may be given to the person for the purposes of the procedure;

(d) that any biometric data obtained from the person may only be retained for the purposes of conducting the procedure;

(e) the right of the person under this section to request confirmation from the Commissioner relating to the non-retention of the biometric data under subsection (4c).

Amendment No 2 [McLachlan–1]—

Page 3, after line 10 [clause 4(5)]—After inserted subsection (4a) insert:

(4b) The Commissioner must—

(a) establish guidelines for the conduct of biometric identification procedures under this section including the operation of prescribed devices and the handling of biometric data derived from biometric identification procedures; and

(b) ensure that a prescribed device used for the purposes of a biometric identification procedure under this section is properly maintained and operated in accordance with the manufacturer's operating instructions and any guidelines issued under paragraph (a).

(4c) The Commissioner must, on application in a manner and form approved by the Commissioner made by a person who submitted to a biometric identification procedure, confirm in writing that the biometric data relating to the person derived from the biometric identification procedure has been deleted within the time required.

(4d) The Commissioner must, as soon as practicable after each 30 June, cause a report to be prepared about the operation of this section in respect of biometric identification procedures during the year ended on that 30 June.

(4e) Without limiting subsection (4d), a report relating to a year must include the following matters occurring under this section in that year:

(a) the number of biometric identification procedures undertaken;

(b) the number of positive identifications made using biometric identification procedures;

(c) the number of false identifications (if any) made using biometric identification procedures;

(d) details of prescribed devices used for the purposes of conducting biometric identification procedures (including operating procedures and the manner in which, and for how long, the devices retain biometric information obtained under this section);

(e) the number of arrests resulting from the identification of a person as a result of a biometric identification procedure;

(f) the number of prosecutions commenced for offences against—

(i) subsection (3)(a) involving a refusal or failure to comply with a requirement to submit to a biometric identification procedure under subsection (1); and

(ii) subsection (4a).

(4f) The Commissioner must submit the report to the Minister who must, as soon as reasonably practicable after receiving the report, cause copies of the report to be laid before each House of the Parliament.

Amendment No 3 [McLachlan–1]—

Page 3, line 16 [clause 4(6), inserted definition of biometric identification procedure]—Delete 'by means of photograph or scan' insert 'using a prescribed device'

Amendment No 4 [McLachlan–1]—

Page 3, after line 18—After line 18 insert:

(7) Section 74A(5)—after the definition of personal details insert:

prescribed device means a device, or a device of a kind, prescribed by the regulations for the purposes of this section.

I thought I might at clause 1 just set out some background to the amendments that I have filed. I would like to start off by thanking the honourable minister for setting out the government's responses, and the staff of the Attorney-General for taking the time to respond so promptly.

This bill aims to provide authority for SAPOL to confirm a person's identity in certain circumstances by using a fingerprint scanner. To achieve this end, the bill amends the current section 74A(1) of the Summary Offences Act 1953 to allow a police officer to require a person to submit to a biometric identification procedure in addition to the current power to require that they state all or any of their personal details. Whilst the bill deals specifically with fingerprint identification, the definition of biometric data in the bill includes:

…fingerprint data or any other prescribed data or data of a prescribed kind that describes the physical characteristics of a person or part of a person that may be used to identify the person.

This means or has the effect that other methods of conducting identification checks, such as perhaps an iris scan or facial recognition scan, could be implemented in the future.

The amendments I have filed have been drafted with the intent to provide additional operational safeguards and appropriate levels of accountability from SAPOL. They have not been designed to inhibit the operational effectiveness of SAPOL.

The first amendment would require SAPOL to seek traditional forms of identification first, as is currently required under the Summary Offences Act. A biometric fingerprint scan can only then be undertaken if a person refuses or fails to comply with the request for identification, or after requiring the production of identification the officer is still not reasonably satisfied about the person's identity.

The amendment also requires that police officers explain to the persons who are required to undergo a biometric identification procedure certain basic information. This includes, for example, the grounds on which the procedure is being conducted, the manner in which the procedure will be conducted, and the person's right to subsequently request certain information from the commissioner.

The second amendment requires that the police commissioner establish guidelines regarding the use of the prescribed devices and handling of the data obtained from the scans. The commissioner must ensure that prescribed devices are properly maintained and operated in accordance with both the manufacturer's instructions and the established guidelines, and must provide written confirmation that the biometric data has been deleted within the required time frame to those persons who make an application to the commissioner for the same.

The amendment also provides for an annual report to be tabled in both houses of parliament. The annual report must include information pertaining to the number of biometric identification procedures undertaken that year, the number of positive and false identifications made, details of the prescribed devices used, the number of arrests resulting from biometric identifications, and the number of prosecutions for offences of refusing or failing to comply with a biometric identification procedure.

The third amendment amends the definition of 'biometric identification procedure' from being one in which biometric data is obtained by a photograph or scan to one which is obtained using a prescribed device. This will ensure that the implementation of any future devices or scanners, such as an iris scanner, would need to be prescribed by regulation.

The fourth amendment consequently inserts a definition of a prescribed device in similar terms to the definition currently used for breath testing devices. This approach permits devices to be identified by model number, and therefore does not require each and every device to be prescribed by serial number.

That sets out the background to the amendments, and I would suggest that we report progress.

The Hon. I.K. HUNTER: I thank the honourable member for the description of the intent of his amendments. I offer the opportunity to other members who want to make comment at this stage or put questions on notice for the government to come back to, or indeed ask direct questions now, before we report progress.

The CHAIR: Does anyone else wish to make comment on clause 1? If not, we will report progress.

Progress reported; committee to sit again.

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