Fears Realised: Agencies Given Opal Card Data Without Warrant

You might think that catching public transport in Sydney is a simple transaction – you pay your money, jump aboard and arrive (often slightly late) at your destination.

When the NSW Government announced the move to electronic ticketing with the Opal card, many of us thought that it would finally make pubic transport quicker and easier to use. But as well as the initial delays and issues in the implementation that resulted in huge crowds backing up at city stations in peak hour, there’s another dark side to the Opal that is ongoing.

It emerged in mid-2014 that police and other authorities would be able to access data from the Opal card without warrants, and it appears that this is now happening, with reports that

Transport for NSW has handed-over information relating to dozens of people.

How Opal works

Opal cards were originally introduced in December 2012, and since then more than 270 million journeys have been taken using the cards.

Users can add value to the card for travel on all forms of public transport. They tap on at the start of the journey and tap off at the end. It has streamlined the ticketing system in NSW, and made it cheaper in some cases.

What information can be gained from Opal data?

The card is linked to personal identifying information, and data on travel is stored electronically for 18 months.

Identifying details are then stripped and the information is kept for seven years. Authorities that are able to request data include not only the police both in NSW and in others jurisdictions, but also other agencies, such as the Department of Immigration, Centrelink, the Australian Taxation Office, and any other authorities the government deems fit. The data that is linked to registered cards includes:

• Name, address, bank account, email address and phone number.
• Account information.
• Date of birth.
• Time, date and locations at which journeys start and end.
• The fare amount.

Date being handed over

Transport for NSW has reportedly released its first set of figures for Opal card information disclosures, including 166 law enforcement requests from NSW Police and 15 law enforcement requests from the Department of Immigration since December 2014.

Transport for NSW has the discretion over whether to comply with requests for information or not.

Of the requests, Transport for NSW made disclosure for 57, most of which were after receiving claims by police that they suspected the traveller of committing a criminal offence (32). There were six requests related to missing person cases and the remainder were for offence proceedings.

While Transport for NSW said that it had only granted access to the information for about one third of the requests made, the President of the NSW Council of Civil Liberties Stephen Blanks suggested in the Sydney Morning Herald that the number of refusals was evidence that authorities were already attempting to abuse their ability to access the information.

Is there anything you can do about it?

The government is unlikely to make warrants a requirement to access Opal card data, especially given that authorities can access travel card data in Queensland and Victoria without warrants as well.

The only thing you can do to protect your information is to use an unregistered card. Unlike a registered card, these are topped up with cash rather than being linked to a bank account, and there are no identifying details such as your name and address. However, this does mean that the card and any money you have loaded onto it can’t be replaced if you lose it.

An unwarranted slippery slope

The personal information collected by the Opal cards can assist organisations like to tax office, department of immigration and police in their investigations for offences like tax fraud, contravention of visas and other offence. But it’s a slippery slope.

Although a warrant application process may slow down such investigations, it is also means of ensuring that there is a basis for applications for information, and that the data is not being misused.

In other words, the requirement for a warrant when requesting data is a good way to limit abuse of the system, which is usually a very positive thing.

Where a warrant is required, the applicant must obtain formal approval from a judge in order to access information by showing that there is a ‘reasonable suspicion’ that the information will assist with the investigation of an offence. The intervention of a judge increases the likelihood that only credible applications are granted, and is an important safeguard against the misuse of power. On the other hand, the current system leaves such decisions to the whim of transport employees with limited to no knowledge of the law and legal requirements.

If you are concerned about being charged with a criminal offence, an experienced criminal lawyer may be able to advise you about the likelihood of being charged, and about the process generally. They may even be able to help minimise the prospects of being charged.