Authors: Alex Moore (Associate, Auckland) and Nick Valentine (Partner, Auckland) 

On 30 March 2023, the Digital Identity Services Trust Framework Bill (the Bill) passed its third and final reading in New Zealand’s House of Representatives, with cross-party support. The Digital Identify Services Trust Framework Act will come into effect on 1 July 2024 (at the latest).  It is a ‘flagship initiative’ under the current Government’s Digital Strategy for Aotearoa New Zealand, and will establish a voluntary accreditation scheme for digital identity service providers, similar to existing frameworks in the United Kingdom, Canada and Australia.

What is it?

The Framework is similar to the equivalent scheme in Australia – digital identification verification service providers who opt-in will be required to adhere to a set of trust framework rules (the TF Rules) and in return will be granted the right to use a mark accrediting their services. Individuals and businesses that use the identity verification services are not required to be accredited.

Again, in alignment with the Australian framework, the Bill establishes two administrative bodies: the Trust Framework Board (the TF Board) and the Trust Framework Authority (the TF Authority).  The TF Board will take on governance responsibilities for the framework, including providing guidance about the framework, monitoring its performance and advising the Minister on making and updating the trust framework rules. The TF Authority will be responsible for the day-to-day operations of the framework, including assessing accreditations, investigating complaints, enforcing the TF Rules, and granting remedies for breaches.

While the Bill represents an important building block of the Government’s Digital Strategy, the Bill itself does not establish the TF Rules. The TF Rules will instead be set out in Secondary Legislation made by the Minister and will, at a minimum, cover requirements for identification management, privacy and confidentiality, security and risk, information and data management, and sharing and facilitation.

What do we think?

Although the Bill is a step in the right direction for encouraging public trust of digital services, it does very little to grapple with the bigger issues of the online world, such as rights to digital identity and the data associated with an individual’s online presence and interactions.

In many ways, the Bill is reflective of the slow and usually toothless approach to digital governance in New Zealand to date. New Zealand is often playing catch up when it comes to regulating digital technologies and, given it has taken 18 months to get to this stage without actually establishing any substantive rules for the provision of secure and trusted digital identity services, the final passage of the Bill through the House feels a little underwhelming. Particularly as the scheme is voluntary, largely based on the equivalent Australian framework and was developed with the benefit of learning from similar frameworks in the United Kingdom and Canada.

What’s unique?

Despite its clear Commonwealth influences, the Bill does introduce an important element which is unique to Aotearoa – the need to consider te ao Māori (broadly, the Māori worldview including tikanga Māori – Māori customs and protocols) approaches to identity when developing the TF Rules. The Bill establishes a Māori Advisory Group which the TF Board will be required to consult with prior to advising the Minister on the making of TF Rules and the TF Board must also include members “with expert knowledge of te ao Māori approaches to identity.” These consultation and participation requirements are intended to facilitate equitable Māori participation in the digital environment and recognise the Government’s commitment to the principle of partnership under te Tiriti o Waitangi (the founding document of colonial New Zealand).

In a rather satirical twist, the legislative process itself became the victim of authenticity issues in the online world as a result online misinformation campaigns during the height of the COVID-19 pandemic. Of the roughly 4,500 public submissions on the Bill, around 4,050 of those were received during the last two days of the six week public consultation period, including 3,600 submissions in the final three hours. Parliamentary advisers attributed this influx to “misinformation campaigns on social media that caused many submitters to believe that the Bill related to COVID-19 vaccination passes.” Perhaps this incident was evidence enough that New Zealand needs to take a more proactive approach to regulating the digital environment, as the Bill ended up attracting cross-party support.

What’s next?

While the Bill’s passage itself is nothing to write home about, it will be interesting to see how the framework grapples with te ao Māori perspectives on identity in practice. Hopefully, the cross-party support this Bill garnered will energise the Government to tackle some of the bigger digital rights and privacy issues we are currently facing, both nationally and globally.