House debates

Wednesday, 30 March 2022


Data Availability and Transparency Bill 2020, Data Availability and Transparency (Consequential Amendments) Bill 2020; Second Reading

5:18 pm

Photo of Bill ShortenBill Shorten (Maribyrnong, Australian Labor Party, Shadow Minister for the National Disability Insurance Scheme) Share this | Hansard source

I rise to speak on the Data Availability and Transparency Bill 2022 and the Data Availability and Transparency (Consequential Amendments) Bill 2022. In doing so, I move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House calls on the Government to:

(1) support the appointment of a Data Commissioner;

(2) immediately abolish the Average Staffing Level cap for the Digital Transformation Agency;

(3) reduce the scourge of contracting out by placing an annual limit on the number of consecutive fixed-term labour hire contracts an agency can issue for a role; and

(4) immediately finalise and publish the Digital Review—including information relating to current and forecast ICT expenditure and assets—conducted by the Digital Transformation Agency".

This bill is designed to facilitate controlled access to public sector data for specific purposes in the public interest through a legislative framework, and is in part a response to the Productivity Commission's inquiry into data availability and use. The three permitted purposes for sharing under the data sharing scheme are delivery of government services, informing government policies and programs, and research and development. Sitting over the top of the scheme is a data commissioner, who has the power to punish breaches.

The member for Fadden has previously described the aims of the bill, and I won't seek to speak further at length on them. I do acknowledge the member for Fadden and his office for listening to our sensible suggestions on this bill and working constructively with Labor to improve it from a bill that was riddled with problems to a bill we believe the people of Australia will accept. In short, legislatively speaking, Labor was presented with a Ford Edsel—with a lemon. We've switched the engines, we've beaten the panels and we've touched up the duco. With our improvements, well, if it's not a Maserati then at least it's a stolid Toyota Corolla. This process of improvement by negotiation has been possible because there is, with one or two notable exceptions, a rare willingness to work together as we get towards the end of the 46th Parliament. This willingness to work together, I submit, has been rare since about September 2013, and that rarity is a shame. I think it is a shame that it takes the ending of this parliament and potential defeat at the ballot box for this nine-year-old government to perhaps get off their seat and get serious about negotiating in a bipartisan way and legislating for the common good.

This bill is not the only recent bill that's benefited from the all-too-rare spirit of goodwill. Why have so many cabinet ministers waited so long for these legislative changes—changes to social security rules, changes to disability services, changes that will help older Australians? These are not major improvements we need in these areas, mind you; they're only minor improvements. But, as minor changes, there will nonetheless be improvements for the lives and convenience of our fellow Australians. So Labor won't play politics; we will support them. The question is: why? Why, at the eleventh hour, do cabinet ministers decide they want a small iota of progress? Is it that they can put their name to something if they lose the election and leave this place—that they have some legacy?

I think the government ministers are staring at the abyss of an uncertain election result. They're contemplating the long nights of the soul that will follow the days on the golf course of a post-parliamentary career. They're faced with the prospect of a long retirement and they're weighing their legacy. They're asking themselves: what was it all about and what did I actually achieve for ordinary Australians? At five minutes to midnight their chilly neoliberal hearts are thawing. Better late than never, but what a waste of governing.

There is a broader question: why has the government been run so politically dogmatically for the last number of years? It's not been a great decade of conservative leadership in this country during these Abbott-Turnbull-Morrison years, but the lack of centrism and the absence of bipartisan leadership has been particularly heightened under the current Prime Minister. People often comment about the Prime Minister's marketing background, but there is another part of his CV that explains a lot more about how, in the last few years, this country has endured being run for hourly political advantage. I speak, of course, of the Prime Minister's time as state director of the Liberal Party in New South Wales. There's a time for politicking—of course there is—but there's a time, such as a pandemic or a national emergency, to rise above and lead for the common good. Instead, we have the former party director's eye there, always like the Eye of Sauron, hovering above the cabinet table, above the coalition, above the premiers—Liberal and Labor—above the national cabinet table scrutinising the best possible advantage not for the nation but for the office holder himself. I do think that much more could have been advanced for Australia with a bipartisan spirit from the government. Alas, we can't turn back the clock of the last three years.

We have some members of this government who I think consider themselves quite adept techno-futurists—call them the Zuckerbergs of the public service. They look to Silicon Valley and they think, 'Why can't the Australian government be more like that?' with perhaps the particular minister boldly at the helm. They look at our information technology changes and they see no risk, only opportunity. This does a strange thing to traditional politics.

Conservatives often accuse parties of the Left and social democratic parties like Labor of wrongly thinking that the state can intervene and help in aspects of society. Parties of labour get accused of being naive about the competence and abilities of the state. At the most extreme, there are proclamations like that of the Treasurer's hero, Margaret Thatcher, that not only is the market better placed than the state to adjudicate most problems, but there's no such thing, even, as society. American Barstool conservative, the late PJ O'Rourke, put it a different way when he said, 'Giving extra power to government is like giving whiskey and car keys to teenage boys.'

But, when it comes to rapid IT advances and the changing of the rules that protect citizens, we find ourselves on our side of the aisle having to say to the more conservative side: 'Calm down, folks. Things can go wrong. The state doesn't always necessarily get these things right.' A perfect example of this in the previous term was robodebt. We should all be state-tech sceptics after robodebt. It's hard to believe in a government technological utopia after the technological dystopia that was robodebt. Let's call robodebt what it was: a cruel and illegal war on the poor, powered by an unhinged automated algorithm in which human oversight was completely removed.

Before the Eden-Monaro by-election, Labor announced our policy that, should we win government, we'll have a royal commission into how robodebt came to be so that these mistakes can never be repeated. Even after robodebt, Labor has been required to be the sensible interlocutor on behalf of the Australian people. And with this bill it is Labor—and I acknowledge my own office and the office of the shadow Attorney-General—who have interceded to remove its most dangerous tendencies and have introduced several much-needed legislative safety rails.

The Data Availability and Transparency Bill that was introduced to parliament in December 2020 was in Labor's view then deeply flawed. We did not have a problem with the underlying purpose of the bill, to the extent that it was aimed to establish a scheme for controlled access to public sector data for three limited purposes: delivery of government services, informing government policies and programs, and research and development. But the bill they proposed then was poorly designed, with all the bad trappings of something that had been through a rushed design process. The flaws are so many that I'll canvass only the major atrocities now.

First, the privacy protections were insufficient for data which ultimately is the Australian people's data, not the government's. The government is only a custodian of this information. Second, there was a lack of safeguards were this new system of data sharing to go wrong once it was put in place. Our third major problem was that the scope of the data sharing scheme was excessively broad, proposing opening public data to foreign, non-Australian organisations. Fourth, it was also excessive and highly problematic that such an untested new scheme was proposed to involve private corporations that would be able to apply for access to public data under the bill. And, fifth, the penalties for breaches of the scheme were insufficient.

These weren't all the problems; these were the major problems. So, as it was first proposed, the bill was a mess. It was riddled with conflicts and was too broad ranging, with insufficient safeguards. We were asked by the government who brought us the robodebt fiasco to rubberstamp a system that would potentially expose the data of Australian citizens to foreign corporations. Labor was unwilling to unleash such a dangerous scheme upon the Australian public. We refused to support it in the flawed form. So, for the good of the Australian people, the flawed bill went nowhere. Labor demanded a Senate inquiry, which threw the flaws of the proposed legislation and scheme into further stark relief. I want to thank Senator Tim Ayres, the late Senator Kimberley Kitching and Senator Marielle Smith for their work.

My office has spent more than a year consulting with stakeholders and with the government. To some extent the government has outsourced the job of consulting to the opposition. Anyway, it was not just we in Labor who had concerns about the original design; it was privacy groups, the Law Council and the Australian Medical Association, among others. We were busy behind the scenes throughout 2021 trying to salvage a workable data sharing scheme that also protects the interests of the public. I do want to thank the government and the member for Fadden's office for negotiating in good faith. Whether or not they did it out of pure political pragmatism, it's an okay result for the Australian public nonetheless. The initial risks of the scheme, the privacy concerns and misuse of data, have been mitigated by the concessions the government has given Labor during negotiations.

I believe that the most troubling aspects of the original bill have now been mitigated. The major improvements include that the lack of privacy protections and safeguards have been overcome, that the scope of the scheme extending for foreign organisations has been removed, that the scope of the scheme extending for the private sector has been removed, that a review of how the scheme is running is to be conducted in three years, and that there is a five-year sunset clause in the whole thing. Other improvements include the clear removal of compliance as a legitimate purpose under the scheme, the removal of conflicts in the role of the data commissioner, greater public transparency of the data sharing projects being approved, increased sanctions for the breaches of the rules, and an increased onus on the requirement to seek consent from data holders.

In its new form, the bill now essentially removes some of the barriers to data sharing between state and federal governments and Australian universities for specified purposes and with the approval of the data commissioner. It is now a scheme for data sharing with oversight and for specified purposes and it applies not to foreign entities or the private sector but to Australian governments, their departments and agencies, and the Australian university and research sector.

What is possible under this safer version of the scheme? Well, in the wake of a disaster such as a bushfire or a flood, where the government is trying to get emergency payments to people without documentation, a ruling by the data commissioner could, for instance, enable Centrelink offices to make an emergency disaster payment to a needy family that are not Centrelink clients, into their Medicare-linked bank account. At the moment such a thing is impossible due to rule constraints. That is the scope of the data sharing scheme in our government and universities. With this vast reduction in scope, many of Labor's concerns and the concerns of stakeholders are soothed. The AMA, for instance, was concerned that private health insurers might be able to get their hands on identifiable health data. With the removal of the private sector, that primary concern is addressed.

Labor has worked constructively and diligently. We've communicated our own concerns and the concerns of experts to the government. The result of these painstaking negotiations is a much more acceptable scheme. Our attitude was this: prove to the Australian public that this can work in the public sector before asking them to trust that the doors should be flung open to private multinational corporations.

I now wish to elaborate on why it's so important that leaders in government take a sensible approach to opening up public data sets to private multinational corporations, as was before Labor's intervention initially proposed. But let me say this: this is not an anti-business approach; it's an approach that is pro the rights of the individual. There are many excellent companies. The vast, vast, vast majority here and abroad do business every day in a highly ethical way. But when corporations choose to betray the public trust, things can go wrong very quickly. We would be foolish to ignore lessons from such incidents.

Those of us who remember the dawn of the internet have witnessed how the true nature of digital tech companies and what they do with users' data has become clearer over time. Free search engines, like Google, once seemed like a wonderful free service that was just part of the furniture of the internet. Free online meeting places, like Facebook, seemed the same. But, in 2022, the nature of these businesses is more starkly apparent. There are big companies that must find a way, any way, to drive profit. These are not benevolent charities. The commercial drive has intensified since companies have been floated and they have the pressure of stakeholders. Those carefree early internet days of using search engines and social media while believing it was there to serve you now seem perhaps naïve in retrospect.

The headlines and consequent stock market results that Facebook and Zuckerberg attract today are very different to those of nine years ago. We are aware now of how users' data can be harvested and manipulated and sold to third parties. There is a saying about the digital world: if you don't pay for the product, you are the product. Certainly companies like Facebook and Google make money from advertising, just as traditional media did for many golds. But the real corporate value for some of these companies, the real rivers of gold, are in the targeted, personalised advertising market and the data harvesting of their users.

Data, it is said, has now surpassed oil as the world's most valuable resource. In some ways, the tech titans of the 21st century are strikingly similar to the oil barons of the early 20th century: then, Rockefeller and Getty; now, Bezos and Zuckerberg—super powerful, quasi-monopolistic, utterly committed to their own interests. Like the oil barons, the tech titans pose a challenge to competition watchdogs and how they operate in a legal landscape that struggles to keep pace with their breakneck development. But the commodity in today's masters of industry trade is far more personal than oil; it's the private data of individuals. Some tech companies have never been very upfront about this shadier back end of their business.

Today, thanks to journalists, activists and documentaries like The Social Dilemma and The Great Hack, people know a bit more than they used to. But we should not be in any doubt; the highly sophisticated commodification of personal data is very new and challenging territory. Amongst other things, it creates a knowledge and power divide, a divide where the powerful have access to data and can exploit and manipulate the powerless whose data they possess and control. Societies around the world are in the experimental phase of seeing what happens when the private director is able to commodify very personal data. This is not just data around age and location that is being commodified. Your internet clicks and choices portray your outlook on many things. Your very outlook is being parcelled up and sold on. Private aspects of people's likes and dislikes, hopes and fears, their very personalities are being measured and commodified. It's the sort of power and access to personal information which was beyond the imagination of the great George Orwell of the 20th century. It's been a seismic change in society.

Some of the change, arguably, has been consensual. Generation Z would have a very different and much more relaxed notion of privacy and surveillance than the baby boomers. But a lot of it, perhaps, has crept up on people from the tech companies who've harvested the data of unaware targets. They've taken advantage of legislators and competition watchdogs lagging behind the speed of technological advancement, and, where laws have existed, sometimes they have simply been scoffed at at the prospect of them being able to be enforced against them. Sometimes we are like the fish at a trout farm, marvelling at all the free worms that we are being fed. But, eventually, a worm catcher contains a hook, and the fisher exerts their original purpose and reals in their catch.

The secret harvesting of personal data, to some extent, has been a passive activity. The burgers of Silicon Valley have been like observers who sit behind a one-way mirror. The real manipulation begins when, not knowing a lot about you, they start pulling your strings. The Cambridge Analytica scandal is a notorious example of this. The Cambridge Analytica saw Facebook allow a third-party app to take up the personal data of up to 87 million Facebook profiles and build a psychological profile of them, which British consulting firm, Cambridge Analytica, then used in a political campaign. The revelation of the scandal led to a fine for Facebook, led to Cambridge Analytica filing for bankruptcy, yet more statements by Mr Zuckerberg of regret and yet more pledges to do better. If you think this is just a version of politics as usual, it is worth considering the description by the Cambridge Analytica CEO of the hidden interference on behalf of one of the parties in the Trinidad election. He was recorded saying:

We went to the client and said, we only want to do one thing, we want to run a campaign where we target the youth—all youth, all the Blacks and all the Indians—and we try and increase apathy.

… … …

We came up with this campaign which was all about ‘Be part of the gang, do something cool, be part of a movement.'

… … …

Don't vote. Don't be involved in politics. It's like a sign of resistance against – not government, against politics. And voting. And very soon they're making their own YouTube videos. This is the prime minister’s house that's being graffitied! … It was carnage.

These were the people Facebook were in bed with, the ones who were sharing millions of views of data with the people who ran a covert campaign to enlist Afro Caribbean youth in what it pretended to be an authentic youth movement but what was secretly designed to manipulate them into surrendering their votes, which brings us to yet another Facebook scandal.

This time, Facebook turned 700,000 of its users into psychological laboratory rats to be poked and prodded without their awareness. While Facebook customers read their feeds and looked at photos of family and friends, cat videos, news headlines, technology big brother was there testing what would happen if their mindsets were messed with. Without warning, Facebook used data scientists to skew what hundreds of thousands of Facebook users saw when they logged onto the social media site. One group was given a feed featuring happy and positive content. The other was given feeds that skewed negative and featured sad content. At the end of the week-long involuntary experiment, emotional contagion was proven. The negative feed consumers went on to post negative words and content themselves and the positive, more positive content. It was the moment we moved from a world where the customer is always right to one where the customer is unwittingly subjected to a psychological vivisection. It does not take a huge leap of imagination to see big technology combining these manipulative techniques for advertising and commercial purposes.

We have standards around these things like not targeting alcohol advertising at children, but these laws seem like relics and antiquities if in the new media space we do not even know we are being manipulated for advertising purposes. How have we got to this point in the world, where so many in the world can be manipulated like marionettes? In some ways, we are the victims of our own success in the advancement of data technologies and, to some extent, our own over sharing and failure to protect our own privacy online. Facebook falls back on the fine print of its terms and conditions to justify these psychological operations, but I don't really think it passes the lounge room test, the kitchen test, the pub test—what have you. Experts are unconvinced by Facebook's argument there is any real consent on the part of its users. This is by no means a comprehensive timeline of the global digital experience and, of course, so much about our digital revolution has empowered and has delivered massive and fantastic change and improvement to the quality of peoples lives. But the examples I have used come from companies such as Facebook, now calling itself Meta, that originated in the US.

There are even greater threats and complications from platforms like TikTok, which is run by ByteDance out of China. These examples are representative of some of the ways our perception of the free internet is changing and we are becoming more aware and less naive. Digital consumers are, thankfully, increasingly aware of how their information is being commodified. They are increasingly aware that tech companies may promote corporate mottos 'don't be evil and do the right thing' but they don't always practice what they preach.

Ideally, governments around the world should have been ahead of these unsavoury developments. Ideally, we would have been pre-emptively, through regulation and negotiation, protecting citizens from the excesses of large profit-driven corporations. The world is starting to get there now, a little late perhaps, not helped by the blind faith that conservative neoliberal governments around the world have in the so-called invisible guiding hand of the market, but we are starting to get there.

Based on this potted version of the data story so far and where it can go wrong, there are few lessons we can learn. Data, unlike gold or oil, may seem intangible but it is a precious, sought-after commodity. We know that the lust for precious stones leads to the blood diamond industry. We know that shortages of sand needed for building is leading to criminal gang activity and mass environmental destruction. We need to change our mindset and recognise the same incentives and profit motives apply to the precious commodity of data. Firstly, people's data may not be being harvested and exploited at the point of a gun but it is still being harvested, manipulated and exploited. Secondly, legislators need to ensure they are keeping up with the ability of corporations to breach people's inherent rights to privacy, dignity and being free from manipulation. Thirdly, we should be reticent in trusting an unchecked private sector to handle people's data with an automatically guaranteed sense of ethics. Fourthly, we can trust governments much more than we can trust private corporations.

Australians may feel pretty cynical about their governments at the moment. I certainly don't blame them feeling that way about the current federal government. But at least they have the power and the ability to vote them out. We can't vote out Mark Zuckerberg. We need to ensure the government is being a competent gatekeeper, vigilantly protecting citizens' data rights against corporate raiders. The balance good governments must strike is between not being backward about harnessing the power of technological advances and not being naive about the need for effective oversight of the private sector's involvement in government services, which brings us back to our Data Availability and Transparency Bill.

Labor is in favour of modernising our public service, particularly when doing so can result in a better experience for individual Australians trying to access government services. Labor is in favour of using big data to make sure we can gain the benefits which are available in the provision of information by citizens to their government. But our modernising, progressive impetus must be balanced by the rights of individual Australians in their dealings with government. When it comes to public data, it must always be remembered this is people's data. It is not a thing owned by the government that can or should be commodified or sold to the highest bidder. The government is merely the custodian. We are merely the custodians of our citizens' information on trust. I think, sometimes, some government ministers are tech utopians who think the government should race to emulate the corporate world. But a Silicon Valley motto of 'move fast and break things', if ever appropriate, is particularly inappropriate in the context of obligations a government has to its citizens about their personal information. When tech utopians are given unbridled access to levers of government we can get disasters like robodebt and white elephants like the COVIDSafe app.

Following Labor's not insubstantial contribution, this bill strikes the right balance. It will be constantly up to the government of the day to ensure in practice this scheme is run correctly, that an appropriate person occupies the position of data commissioner and that there are not unwanted, unforeseen consequences. A phrase that was popularised after the American Revolution comes to mind: 'Eternal vigilance is the price of liberty.' Another relevant phrase is: 'You cannot legislate against stupidity.' It will be up to the government of the day to monitor the new scheme and ensure that in practice there are not abuses and breaches that don't go unpunished, but, most of all, that we uphold and continue to honour the public interest.


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