Digital ID Bill 2023 - Commentary on Ministerial Responses [2024] AUSStaCSBSD 61 (20 March 2024)

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Purpose	The bill seeks to establish an accreditation scheme for entities providing digital ID services; provide additional privacy safeguards for the provision of accredited digital ID services; establish an Australian Government Digital ID System (the AGDIS); and strengthen the oversight and regulation of accredited digital ID providers, entities participating in the AGDIS and the integrity and performance of the AGDIS.
Portfolio	Finance
Introduced	Senate on 30 November 2023
Bill status	Before the Senate

Tabling of documents in Parliament^[87]

2.16 Subclause 145(1) provides that the Minister for Finance (the minister) must cause periodic reviews to be undertaken of provisions in the Digital ID Rules that relate to the charging of fees by the Digital ID Regulator. Subclause 145(4) provides that the minister must cause a written report about each review to be prepared and published on the Digital ID Regulator’s website. The provision does not require any such report to be tabled in both Houses of the Parliament.

2.17 In Scrutiny Digest 2 of 2024, the committee requested the minister’s advice as to whether the bill could be amended to provide that reports prepared under subclause 145(4) be tabled in Parliament in order to improve parliamentary scrutiny.^[88] The minister responded to this concern that should the committee express a preference for tabling in Parliament, the Minister had no reservations in doing so.^[89]

2.18 In Scrutiny Digest 3 of 2024, the committee indicated its preference accordingly and sought further advice from the minister on whether amendments to clause 145 of the bill could be moved in order to require the tabling of such reports in the Parliament.^[90]

Minister for Finance’s response^[91]

2.19 The minister advised that given the committee’s stated preference, the Government will move amendments to the bill to provide that the minister must cause the report for each periodic review of the charging framework in the Digital ID Rules to be laid before each House of the Parliament.

Committee comment

2.21 The committee welcomes the minister’s undertaking to amend the bill to provide that reports prepared under subclause 145(4) in relation to the periodic review of the charging of fees by the Digital ID Regulator will be tabled in both Houses of the Parliament.

2.22 In light of the above, the committee makes no further comment on this matter.

Incorporation of external materials as existing from time to time^[92]

2.23 Subclause 167(2) of the bill provides that the Accreditation Rules, the Digital ID Data Standards and the Digital ID Rules, which are core instruments that will be made pursuant to the bill, may apply, adopt or incorporate any matter contained in other material as in force or existing from time to time. The explanatory memorandum provides examples of material that may be incorporated, which includes Commonwealth documents relating to protective security and cyber security, international standards and digital identity standards set by internationally recognised organisations.^[93]

2.24 In Scrutiny Digest 2 of 2024, the committee requested the minister’s advice as to whether documents applied, adopted or incorporated by reference under clause 167 will be made freely available to all persons interested in the law.^[94] The minister advised in response to this concern that there will be two kinds of incorporated documents in the legislative rules, one of which is not freely and publicly available in full and that the other is unable to be made publicly available due to copyright.^[95]

2.25 Accordingly, in Scrutiny Digest 3 of 2024, the committee noted that it is not uncommon for incorporated documents subject to copyright to be made available by Departments in other manners. The committee requested the minister’s advice as to whether free access to documents that will be applied, adopted, or incorporated by reference into legislative instruments as a result of clause 167 made available via other means, such as through public libraries or by display at departmental offices on request.^[96]

Minister for Finance’s response^[97]

2.26 The minister noted the committee’s comment that it is not uncommon for incorporated documents subject to copyright to be made available via other means. The minister advised that the Department of Finance is further investigating the ways in which documents that are incorporated by reference and that are subject to copyright can legally be made available for free viewing by interested parties.^[9]

Committee comment

2.27 The committee thanks the minister for this response, noting that it would appreciate further advice on the conclusion of the Department’s investigations on this matter in due course.

2.28 In light of the above, the committee makes no further comment on this matter.

^[86] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Digital ID Bill 2023, Scrutiny Digest 4 of 2024; [2024] AUSStaCSBSD 61.

^[87] Subclause 145(1). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).

^[89] The minister responded to the committee’s comments in a letter dated 16 February 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 3 of 2024).

^[91] The minister responded to the committee’s comments in a letter dated 7 March 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 4 of 2024).

^[92] Subclause 167(2). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).

^[95] The minister responded to the committee’s comments in a letter dated 16 February 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 3 of 2024).

^[97] The minister responded to the committee’s comments in a letter dated 7 March 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 4 of 2024).

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests