NSWCCL believes facial recognition technology presents a unique and wide-ranging threat to cherished values of privacy and autonomy. The possibility of ubiquitous intrusive surveillance is fast becoming a reality without necessary public discussion and legal guardrails.

NSWCCL therefore welcomes the Facial Recognition Model Law Report produced by the Human Technology Institute at University of Technology, Sydney (UTS) and joins the Report’s call for:

• the Attorney-General to introduce a bill into the Australian Parliament, based on the FRT Model Law;
• the Attorney-General to assign regulatory responsibility to a suitable regulator and empower that body to create facial recognition standards
• the Attorney-General to initiate a process with his state and territory counterparts to ensure that the law on FRT is harmonised across all Australian jurisdictions
• the Attorney-General to establish an Australian Government taskforce on facial recognition to ensure development and use of the technology accords with ethical and legal standards

We agree with this Report that our faces constitute uniquely sensitive personal information. Facial recognition technology can reveal and store information about someone’s gender, age, ethnicity, health conditions, emotional state, and behaviour.

There are a many high-risk applications of this technology which are being implemented without sufficient public discussion or consent.

Beyond inaccuracies and biases in the technology which might theoretically be remedied, NSWCCL believes the threat to basic civil liberties means that some uses of the technology should be banned outright, unless and until appropriate safeguards are in place. Such uses include law enforcement agencies using automated facial recognition for identification purposes or to making decisions or inferences about individuals.

NSWCCL also calls on corporate Australia to exercise social responsibility by refraining from use of facial recognition technology until a legal framework is in place. We have already seen that uses which violate community expectations of privacy in retail and other similar public settings have caused reputational damage to prominent brands.

NSWCCL believes consent is a necessary condition for ensuring that human rights are not breached by the use of facial recognition technology, but it should not be the sole condition. Free and informed consent from large numbers of people is unrealistic and puts the onus on the public rather than emphasising the responsibility and accountability of the controller of the technology.

The OAIC has indicated it is in favour of a general fairness requirement for the use and disclosure of personal information. NSWCCL supports this as a starting point that should apply to facial recognition technology.

In this vein, NSWCCL believes a consumer protection model of consent is more appropriate, restricting data flows that pose risk of harm in a way that recognises the power imbalance between the public and the controller of the technology. 

 For more information, see NSWCCL Policy on Human Rights and Technology.