Digital Citizenship and the Right to Identity in Australia

Date01 September 2013
Published date01 September 2013
Subject MatterArticle
Clare Sullivan*
Australia has announced the need to review the distribution of responsibility among
individuals, businesses and governments, as a consequence of the move to digital
citizenship. Australia has formally framed the issues in these terms and has opened
dialogue betwee n government and citizens re garding responsibilities for the use and
protection of digital identity.
This article examines digital citizenship in Australia and considers the implications
for individuals, government and the private sector of the requirement for a n individual
to use his/her digital identity for transactions. The features and functions of digital
identity are examined, and the consequences for indi viduals, business and government
of system failure are considered. The analysis shows that, while there are consequences
for all, individuals are most affected.
The author argues that the traditional approach of relying on privacy f or protection
is inadequate in these circumstances. Privacy, by its nature, cannot adequately protect
the part of digital identity which is required for transactions. The argument presented
is that, unlike privacy, the right to identity can protect the set of digital information
required for transactions. Considering the new system is li terally being imposed by
government, the inherent vulnerabilities of the system, and the c onsequences of system
failure for individuals, formal recognition of the right to identity is an essential e lement
of accountable and responsible governance. Whilst in time the right to identity in this
context may be recognised by the courts, the author argues that legislative recognition
and protection of an individual's right to digital identity is needed now as a key
component of the distribution of responsibility in this new digital era .
Digital identity is an identity which is comp osed of information stored and tra nsmitted
in digital form. As this article discusses, digital identity is now being embedded in
processes fundamental to economic and social ord er as governments a round the
* School of Law, University of South Australia, Campus West, George Street, Adelaide,
South Australia, Australia 5000. T: 61 8 803020308. Email:
558 Federal Law Review Volume 41
including the Australian government, move services online. A natural person
must use a digital identity to access these services and to transact under the new
government scheme.
This is a fundamentally d ifferent way of transacting and it is
elevating this digital identity to an unprecedented level of personal, commercial, and
legal significance.
Historically, identity has been a rather nebulous notion at common law. In contract
law, for example, identity has largely been in the background as the law focused on
issues such as whether there was a meeting of the minds necessary for a contra ct,
informed consent and arms-length dealing. T his focus, which mainly developed in
response to commercia l practice in the 19th and 20th centuries, led to uncertainty about
the role of identity in commercial dealings.
Now identity, in the form of digital
identity, has emerged from the shadows. Whilst a concept of digital identity for
transactions has been emergent for many years for private transactions using credit
and debit cards, for example, the full implications of digital identit y are only now
becoming evident.
Technological advances have created a whole new environment for interaction.
dealings previously conducted in person are rep laced by dealings without any
personal interaction, the requirement to provide digital identity f or transactions has
increased. Now digital identity is poised to assume an even greater role as
governments around t he world, including in Australia, mo ve to fully di gitalise
government services and transactions. This is revolutionising service delivery and the
way in which government transacts with its citizens. It has significant ramifications,
especially for individuals.
This article analyses the functions a nd nature of digital identity in the context of the
Australian govern ment’s regulatory approach and considers its v ulnerability to error
and the consequences of this, pa rticularly for individuals. Two main arguments are
presented as to why the right to ide ntity should be recognised in relation to digital
The new scheme being rolled out in India is the most recent example of a compreh ensive
scheme, see iGovernment, India plans multi-purpose national ID card for citizens (24 August
2010) iGovernment
A transaction is any dealing for which an indivi dual is required to use digital identity. A
transaction may be between an individual and a government department or agency or with
a private sector entity if that is permitted under the scheme, and can range from an enquiry
to a contract. This article focuses on the consequences for individuals, i.e. natural persons.
As one commentator observes in relation to identity, 'much legal doctrine obscures the
salience of identity qua identity, though when confronted directly with the issue, the law
does give substance to the importance of identity.' See Richard R.W. Brookes 'Incorporating
Race' (2006) 106 Columbia Law Review 2023, 2097.
Digital identity is all the information digitally recorded about an individual, i.e. a natural
person that is accessible under the particular scheme. 'Information' includes 'data.'
As Andrew Feenberg observes, this is the 'substantive impact' of technology. See Andrew
Feenberg, Critical Theory of Technology (Oxford University Pres s, 1991) 5. See also, Arthur
Cockfield and Jason Pridmore, 'A Synthetic Theory of Law and Technology' (2007) 8
Minnesota Journal of Law, Science and Technology, 491.

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