Legal Identity in Australia

Abstract

Thirty years ago, Australia staunchly opposed the introduction of a national identity card. A uniform identification scheme was rejected on the basis that it would alter the relationship between the individual and the state, and thereby fundamentally change the premise of Australian society. It was feared that the onus upon the government to prove its legitimacy to the people would be reversed and, instead, individuals would be asked to prove to the state that they were ‘entitled to operate’.[1] Public opposition halted plans for the Australia Card, but it has not stopped the gradual evolution of Australian society into one that demands identity checks at the outset of almost every transaction between an individual and the state. The individual–state relationship has been recast but Australia’s laws have not been reviewed. This thesis provides that review and finds that Australia’s approach to the regulation of identity is outdated. This thesis starts at first principles, and extends on the existing literature to introduce a new public law concept called ‘legal identity’. Legal identity is an individual’s official, recorded identity for the purpose of interacting with state agencies. It is the public version of an inherently personal and private characteristic. This thesis develops the concept of legal identity and explains how and when it arises in Australia. It proposes that legal identity is of critical importance because it exists at the interface of the individual–state relationship; indeed it is what makes that relationship possible. Legal identity is of value to states because it is the means by which individuals can be counted, tracked and governed. Legal identity is also important to the individual. When an individual has legal identity, he or she can be connected to a whole regime of rights, entitlements and social benefits. It is argued that the law in Australia is premised on a concept of identity whereby each person has a recorded name and an ascertainable date of birth, which can be used to distinguish each individual from the group at large. The law assumes that each individual has verifiable documentary evidence of his or her identity. This thesis contests those underlying assumptions and presents evidence that there are some people in Australia who do not have any reliable evidence of their name or their actual date of birth. There are others whose name or date of birth is incorrectly recorded on their identity documents. Thesediscrepancies are symptoms of suboptimal regulation. The operational effectiveness of legal identity depends on government documents being reliable. To be reliable, records of legal identity must be consistent, comprehensive and as accurate as possible. It is argued that Australia’s regulatory approach is reactive rather than proactive and that it discourages individuals from regularising their legal identity. This compromises the operational effectiveness of legal identity and, in the absence of safeguards, threatens individual privacy. Thus, the essence of this thesis is that Australia should adopt a new approach to the regulation of legal identity. That approach is one that is accessible and coordinated, and which facilitates the making of reliable records.