Best of 2020: Open government and digitising the customer experience

Governments are making great strides along the road to digitisation, but many privacy and ethics question marks remain.

Governments at all levels across Australia are continuing to push into digital transformation, with open government and digitising the customer experience being two of the overarching themes. Initiatives such as Service NSW’s foray into digital driver’s licences is a worthy example of this transition in service delivery.

With a massive take-up in the first 48 hours of being launched, the digital licence has been praised for streamlining and simplifying the customer experience, but data and privacy concerns have also been raised.

Service NSW — the single customer service division for the delivery of government services — made great strides in 2019 in digitising forms and reducing the overall complexity of dealing with government.

But NSW is not alone in grappling with digital transformation — there are many initiatives underway across the states.

For example, the Queensland Government, as part of its DIGITAL1ST digital strategy for 2017 to 2021, is currently discussing projects such as digital hospitals, the use of drone technology to assist in turtle rehabilitation and new technology for emergency services.

At a Commonwealth level, a concerted approach is underway to develop a proposed national driver’s licence facial recognition solution, with the Identity-matching Services Bill 2019 the proposed statutory vehicle for implementing this.

Across the various states and at a national level, there are many legal angles to consider in bringing on these digital transformation initiatives, such as:

• Tortious liability — is there potential tortious liability associated with the initiative and how should governments seek to reduce liability?
• Copyright — are there copyright implications and how will they be treated?
• Permissible sub delegation of legislative authority — is there an express authorisation that enables the decision to be made by an electronic system?
• Personal information — is personal information involved and how will it be treated?
• Public accessibility and disclosure — will the information be accessible or can it be disclosed on application?
• Admissibility in court — will the data be admissible in a court or tribunal?
• Maintaining the digital record — what are the record-keeping obligations imposed?

NSW: Balancing data sharing and privacy

The NSW digital strategy and the Open Data policy have allowed the sharing of government data on over 10,000 datasets and the development of many applications that have been useful to consumers, in particular concerning transport usage.

NSW has not been dogged by the problems that have persisted at a federal level, where de-identified or purportedly de-identified data sets have been released and subsequently been able to be re-identified.

NSW is set to remain at the forefront of digitisation, through the demonstration of a significant commitment to preserving privacy. This is led by the NSW Chief Data Scientist, Dr Ian Oppermann, one of the leaders in the field of de-identification and the editor of Privacy-Preserving Data Sharing Frameworks – People, Projects, Data and Output, published by the Australian Computer Society in December 2019. This publication has a forward written by the NSW Minister for Customer Service.

However, this has not always been the case and the introduction of the Opal card — which enabled individuals to be tracked — raised the ire of many… in particular, the then NSW Information and Privacy Commissioner. It resulted in a private action being taken by a privacy advocate who initially was successful in the NSW Civil and Administrative Appeals Tribunal (NCAT) in February 2018. It was claimed that Transport for NSW had breached the individual’s privacy and the NSW Privacy and Personal Information Protection Act, but in August 2018 the NCAT Appeal Panel set aside the decision.

All of this change is occurring as the tide of trust in digital platforms appears to be slowly turning and individuals are moving to take back control of both their data and digital personas. NSW appears well placed to operate in that environment, balancing data sharing and privacy.

Queensland: The DIGITAL1ST strategy

The Queensland Government is seeking to lead the way in digital government as part of its DIGITAL1ST digital strategy which, the government predicts, will save millions of dollars per year.

Queensland is also looking at projects such as digital driver’s licences, with a trial of a digital app due to be released in the Fraser Coast region in the coming months.

However, with the push to use digital technology comes a number of challenges to ensure that data is used properly and citizens’ privacy is protected. Already there have been challenges over the state government’s digital hospital projects, with concerns that Queensland Health’s integrated electronic medical record software was causing a spike in mislabelling of blood tests.

Following privacy concerns relating to the introduction of My Health Record nationally, the focus is on ensuring these new technologies are used in the right way, without jeopardising patient privacy.

In this light, Queensland’s current privacy regime presents potential concerns. The Information Privacy Act 2009 (Qld) provides a regime that is generally seen to be in need of review and updating, particularly in light of global privacy standards having been lifted to a much higher bar recently through introduction of the European General Data Privacy Regulation (GDPR) and other similar regimes. Notably, the Commonwealth Government’s intention is to amend the Privacy Act 1988 (Cth) to bring in higher penalties more in line with GDPR, even though it was last updated more recently (in 2018) than the Queensland legislation.

However, it should be noted that there has been a potential increase in privacy protection for Queenslanders with the enactment of the Human Rights Act 2019 (Qld), which provides protection from unlawful or arbitrary interference by government with a person’s privacy.

Another key area for government to consider in relation to privacy relates to emerging technologies such as drones. Current regimes are not designed to apply to this type of technology, and leave citizens uncertain as to their rights and obligations in relation to potential invasions of privacy by drones.

A further key question for the government is the emerging area of data ethics, reflecting the increasing focus not on simply “can data be collected and used?” but on the question of “should data be collected and used?” In the light of a significant drop in trust by consumers generally, prompted by major data breaches on an almost daily basis, a strong approach on the ethical collection of data can be a significant step in restoring that trust.

Christine Jones is Construction & Infrastructure Partner at law firm Holding Redlich, while Lyn Nicholson is Corporate & Commercial General Counsel and Andrew Hynd is Corporate & Commercial Partner.

Holding Redlich will be holding government lawyer CLE intensive seminars on 26 February (Sydney) and 12 March (Melbourne), based on the theme of ‘open government and digitising the customer experience’. The sessions will be run by highly qualified legal experts, including Paul Monaghan, NSW Law Society, and Michael Dolan, Law Institute of Victoria.

Image credit: ©stock.adobe.com/au/chinnarach

This article was first published on 18 February 2020