This week, I sent the following letter out to ALL federal Members of Parliament, with the view of meeting with them and discussing this important legal matter with them.
I urge you to do the same, using the following as a form of a template – but make sure you add your own words and your own concerns!
LOBBY LETTER TO THE REGISTRAR OF THE ABRS
AND FEDERAL PARLIAMENTARIANS
Dear Mr Chris Jordan AO,
Commissioner of Taxation, Registrar of the Australian Business Registry Services
My name is Andrea Tokaji. I am a trained international human rights lawyer (Juris Doctor – UC, GDLP, LLM – ANU). I have worked writing legislation and policy for both the Commonwealth and the ACT Attorney-General’s Department, for the United Nations with Refugees, as an international keynote speaker on human rights matters and a lobbyist since 2009 making several government legal submissions, with countless articles published on human rights legal matters.
I have taught law at the university level, and my experience working on human rights projects extends to Thailand, Cambodia, Myanmar, the United States of America, and speaking in Genevan on the international crime of human trafficking.
Today, I wish to raise human rights concerns in relation to the Director Digital ID legal amend ents to the Corporations Act 2001 (Cth).
I understand that recent amendments to the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020 (Cth) and the Corporations Act 2001 (Cth) require all company directors, or anyone intending to become a director, to obtain a Director Identification Number (DIN).
All listed Directors with ASIC, and as defined by section 9 of the Corporations Act, are required to submit their personal and corporate information and identifiers onto the new MyGovID and the Australian Business Registry Services (ABRS) websites.
My understanding is, that there are no protections afforded to the digital id materials submitted by directors on either government platforms either in the Privacy Act (Cth) 1988, or in any other legislation. It is also my understanding that there are no protections put into place against hackers, international actors or the effects of discrimination in the form of cancel culture.
This is particularly disturbing given, that the Registrar of the ABRS has announced that he intends to take the mater of the Director ID being made public to consultation.
This further raises privacy and protection concerns.
Given such high penalties for non-registration by the now new deadline of 14th of December 2022 in sections 1272C, 272D, 1272G and 1272H with a maximum of $1.1m civil penalty, and given that these new standards are a major shift for the way we do business nationally an internationally, there is an expectation for parliament and the executive to undertake a lengthy consultation and information strategy prior to the roll out of the amendments.
To my knowledge, no such consultation or information strategy ha taken placed with most directors becoming aware of the legislation in the last few weeks, via a notice from their accountants.
Given the this legislation applies to: a director of a company, a listed director of a charity, an Aboriginal Torres Strait Islander Organisation, a corporate trustee of a self managed superfund, the director of a registered Australian body such as an incorporated association that is registered with ASIC and trades outside the registered State or Territory, and directors of a foreign company carrying on business in Australia.
According to ASIC, there were about 3 million Companies registered in Australia in 2021, about 60,000 listed charities, and there are currently 1.1 million members with self managed superfunds listed, with a total revenue of $822 BN in superannuation.
All of these Australian families will be affected by this new legislation in a significant way.
Not many Australians know about these changes and how they will impact their business dealings and investments at all. Nor has the business community been consulted on these significant legislative changes.
This centralisation of data and centralisation of power leaves us to question, in a constitutional democracy whether the principles of the separation of powers is being respected, especially as they relate to the Executive branch, namely, ASIC, the ATO, the ABRS and others, and therefore is the principe of the rule of law still honoured?
My question is: what advantages, and what protections does this new amendment in the Corporations Act provide the corporate world.
According to the Federal Parliamentary website, the amendment to the Corporations Act 2001 (Cth) came into effect in 2019, and the decision to apply this law came via regulation through the Registrar for the 1st of December 2021, with the deadline for registration listed as 30th of November 2022.
It is also clear that, the Australian Government has been considering the digitisation of the way we live and do business since 2015, with One Nation and the United Australia Party vocally standing against this push in the recent Federal Election (May 2022).
According to the Federal Parliamentary website: “The Digital ID system was initiated by the Coalition Government in 2015 as a ‘safe, secure and convenient way to prove who you are every time you access government online services … entirely voluntary and controlled by you’.
In October 2021 an exposure draft of a Trusted Digital Identity Bill 2021 was circulated, but the Bill was not introduced before Parliament was prorogued in April 2022. The Coalition’s 2022 election commitments included ‘expansion of the Digital Identity system’, but the Australian Labor Party did not announce a position on the System. However, in a Senate Committee report published in September 2020, Labor senators’ dissenting report indicated that they supported the System but argued for improvements. While it is likely that the System will be progressed during the 47th Parliament, many variables will depend on how the incoming Labor Government responds to criticisms of the System.”
The Privacy Act 1988 (Cth) does not appear to afford any specific protections for such digital data. I am not aware of any other legislation that covers digital privacy to this extent.
The Registrar of the ABRS, who is also the Commissioner of Taxation has expressed that the accessibility of the Director Digital ID is, for now, accessible by only the Courts, Tribunals and Government Departments, but that this matter will be going to consultation in the near future.
The Government’s current position is not to disclose the Director Digital IDs, but Director ID’s may be accessible by the public into the future.
So, is it correct that the Director Digital ID’s may be made internationally public very soon?
Given the this legislation affects at least 5 million Australians and their families, this is significant enough to expect consultation and engagement with the business community to work together to ensure privacy is protected, the Australian business community deserved to know about this amendment years ago, and they deserved the respect of parliamentary due process, in the form of a public consultation, particularly given the nature of such large fines looming for non-compliance to the corporate sector.
In the midst of the shift towards a digital currency, the growing rise of cancel culture, and the threat of the social credit system being a reality in the west – what protections do our personal and corporate information have on these Government platforms?
I understand that, as the Registrar of the ABRS, you have expressed that the accessibility of my Director Digital ID is, for now, accessible by only the Courts, Tribunals and Government Departments, but that this matter will be going to consultation in the near future.
Therefore, is it correct in saying that the Government’s current position is not to disclose the Director Digital IDs, but that my Director ID may be accessible by the public into the future?
I am available to meet with, and open to discussing this matter further over the phone.
Please indicate which day/time would suit you best.
Andrea Tokaji (JD GDLP LLM)