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Wednesday, 21 June 2006
Page: 25


Senator STOTT DESPOJA (11:09 AM) —I rise in my capacity as the Australian Democrats privacy spokesperson to address the Do Not Call Register Bill 2006. Like other parties in this place, the Democrats will be supporting this piece of legislation. Indeed, we have also long supported this idea and welcome the legislation before us. Certainly well before the 2004 campaign the Democrats made clear our support for a register of this kind, being very conscious, as we are, of any invasion of the privacy rights of Australia and indeed of, as Senator Wong has pointed out before us, the irritation factor of telemarketing calls—or the perception of that—among the community.

As the Senate inquiry into this legislation points out, many people have complained that unsolicited phone calls are an inconvenience and an invasion of their privacy. A recent phone-in that was organised by the Australian Law Reform Commission regarding citizens’ privacy issues reported around three-quarters of the 1,300 calls they received related to telemarketing calls. The President of the ALRC, David Weisbrot, remarked that an overwhelming majority of callers were unhappy with the number and the timing of calls they received from telemarketers. Clearly, there is no doubt that it is a significant nuisance and it has been important that the government respond in a comprehensive and sophisticated way to the need for some kind of register.

Essentially, as you have heard, the proposed register places a prohibition on unsolicited telemarketing calls to an Australian number which is registered on the Do Not Call Register. This essentially allows consumers to ‘opt out’ of approaches made by telemarketers. There are of course penalty provisions in the bill, including civil penalties and injunctions for breaches of the act. We believe that the legislation is a definite improvement on the disparate federal, state and voluntary codes of conduct currently governing telemarketing in our country.

It is particularly welcome at a time when so-called privacy rights in this country are increasingly under threat. There are very strong arguments—and certainly a Democrat initiated Senate inquiry into the Privacy Act bore this out—for a tightening of the current loopholes in the Privacy Act. The Privacy Act, which is a light-touch regulatory regime, does require updating, particularly in light of technological advances that have taken place over at least the last six years. The sad truth is that, for every advance in technology, there is a massive increase in a government’s, business’s or any organisation’s ability to directly and indirectly pry into the private affairs of the public. The key to legislation is to at least attempt to stay ahead of the more obvious technological impacts on the lives of Australian citizens.

I would argue that the greatest threat to Australians citizens’ privacy is ahead of us with the so-called smart card that you would be aware of: $1.1 billion over the next four years has been allocated in the federal budget to allow for the establishment of what is effectively a national identity card by stealth. At the same time, what do we give our Privacy Commissioner? I think it was $6.5 million over the next four years in this year’s budget papers—I will double-check that. That kind of increase to the Office of the Privacy Commissioner does little to enable her or the commission generally to keep pace with some of the invasions into privacy in the lives of Australians.

There are some issues with this bill. I know some of them were canvassed during the Senate committee process, and there is a series of three recommendations, which I think are fairly non-controversial, arising out of that report—recommendations with which we agree. I see that the government, at least in one amendment before us, has attempted to address one of the issues in relation to nominations in writing. But there are a number of exemptions in this legislation. The legislation has exemptions that operate under this bill for charities, registered political parties, Independent members of parliament and candidates, religious organisations, educational institutions, government bodies, businesses with an existing business relationship with customers, and calls conducting opinion polls or carrying out questionnaire based research. These are such extensive exemptions that consumers are still going to receive a relatively high number of calls. I am not denying that this will see a reduction in the number of those nuisance or invasive calls that consumers and citizens have made very clear that they are sick of, but I do think that there is a broad-ranging list of exemptions here, and that needs to be addressed. I will seek to address that broad issue in a second reading amendment which I will circulate shortly.

As members would have seen over the last few days, I have circulated an amendment which I gave notice of many weeks ago and which is perhaps not an amendment that will surprise anyone in this place, given my views on the issues of exemptions for political acts and practices from privacy law. I have circulated an amendment that will seek to remove the exemption that exists for politicians, candidates and, obviously, political acts and practices. As I said, that is not going to be a surprise to anyone who knows my interest in this area. When I was responsible for debating on behalf of the Democrats the Privacy Act changes back in 2000, I think initially we had some success with moving a Democrat amendment to remove the exemption that existed for political acts and practices. That was short lived.

Unfortunately since that time, and due to the opposition of both the Labor Party and the coalition, the exemption, which has existed for political acts and practices and thus for politicians and political parties, has remained. We are exempt from the Privacy Act. It is utterly hypocritical that we expect businesses and members of the community to comply with certain privacy regulatory frameworks when we do not adhere to those practices ourselves. We do not adhere to that regulatory framework; we are not respecting the privacy rights of individuals in the same way that we expect others to.

I hope the coalition and, in particular, the opposition will support the amendment which I will move during the committee stage. The issue of politicians being exempt from the Do Not Call Register Bill 2006 is just one part of a larger problem, one part of a privacy exemption that we enjoy. It is a luxury that we enjoy and it is completely inappropriate. I will continue to fight against that luxury and privilege because we do not deserve it and we should not have it. I am not saying that we are not entitled to collect information, be it about consumers, constituents or what have you, but the basis of the privacy principles and the premise of our Privacy Act and law—whether it applies to the private or public sector—is the right to be able to challenge, view and correct information that is held about you.

As politicians, surely we should be among the most accountable when it comes to collecting, storing or analysing that information. I am going to elaborate for the Senate on some of the privacy breaches for which politicians are responsible. We hail the secret ballot as a vital component of a healthy democracy, but while we maintain the right to vote anonymously, political opinions and sympathies of citizens are being recorded on mass databases operated by the major political parties. When the privacy law was extended to the private sector, this exemption was put in place with the support of both major parties. This exemption enables the major parties to disregard the privacy of Australian citizens in the pursuit of votes. As a consequence, politicians are now among the worst violators of privacy rights in Australia.

We know that both major parties have extensive databases—Feedback, I think, in the case of the coalition, and Electrac in the case of the Australian Labor Party—which record the political leaning of voters. That is not a secret. Starting with the basic contact information obtained from the electoral roll and the phone book, these databases are supplemented with sensitive information about the political views of individuals obtained, for example, when constituents ring talkback radio, write a letter to the newspaper or simply contact their local member of parliament. Office staff are often trained to log the details of all telephone conversations, correspondence and face-to-face meetings and to put it into the database. Further information is of course gathered from telephone polling by so-called independent organisations which sometimes fail to disclose that the polling has been commissioned by a political party.

All political parties commission polling, so all of this can apply to any political party, political organisation or indeed any political individual. Of particular concern, though, is the way in which parties handle postal vote applications from their constituents after requesting that such applications be returned to them rather than sent directly to the Australian Electoral Commission. I understand that in the case of at least one party they assume the voting intention of an individual based on the party to which they return that postal vote application. This information is then recorded on the party’s database. For example, if a person returns their postal application to a Liberal member of parliament, they are assumed to be a ‘leaning’ voter in favour of the Liberal Party and tagged accordingly. If they return their application to a non-incumbent Liberal candidate, then they are tagged as a likely Liberal voter.

This practice raises serious concerns regarding the right to vote anonymously and the complete absence of any consent relating to the collection and storage of such information. Another concern, the key concern for privacy and privacy principles, is that constituents do not have the right to access information that is held about them or to correct that information if it is inaccurate. This is the basis of the privacy principles. Why would we shy away from those principles? It is particularly problematic given the sensitive nature of information that is contained on some databases and the theoretically potentially dubious accuracy of that information, not to mention that political views or votes can be fluid and are susceptible to change over time. People might want to correct the record.

With these concerns in mind, the stated justification for exemption from the Privacy Act—in this case, exemption from the Do Not Call Register Bill—namely, that it is intended to encourage freedom of political communication and to enhance the political process, rings rather hollow. Why are we afraid of accountability and transparency in this regard? The unregulated operation of political databases has the potential to diminish public confidence in the democratic process, to discourage constituents from contacting their local members of parliament and to potentially distort the political process by skewing it in favour of swinging voters.

I think this hypocrisy has to end. It is hypocritical for us to expect industry groups, community groups and other groups to comply with the privacy legislation that exists in this country when we are not willing to comply with it ourselves. As I have said, I have repeatedly moved to try to remove this exemption and to get rid of this double standard. I will be doing that again with a private member’s bill, which will be introduced tomorrow. In the meantime, the amendments that I will move today, not just the committee stage amendment but the second reading amendment, will deal specifically with this bill.

So this is ‘line in the sand’ time. This is a chance for political parties to indicate where they stand on the Do Not Call Register Bill and whether politicians should be exempt from that legislation. It applies to politicians, candidates and Independent members of parliament—all of us—and therefore we should be removing that exemption. I acknowledge some of the other concerns that have been raised in the Senate committee—some of those are technological—given that this legislation is based largely on the Spam Act 2003. Probably the best way of proceeding with the definition of consent and some of those issues is to ask the government how it is dealing them in the committee stage.

Again, on the issue of exemptions, the Democrats’ concerns are strongly backed up by the submission provided to the Senate committee by the Australian Privacy Foundation. I want to put this on record very clearly. When they talk about the exemptions in their very comprehensive submission they say:

The rules regulating exemptions are of the greatest importance as they risk seriously undermining the value of the Do Not Call Register. The starting point must be that the rights to opt-out should be no less than those which are currently provided under NPP2.1(c) of the Privacy Act 1988. There are no reasons for, or legitimacy in, providing exemptions that go beyond what is catered for in that instrument.

They go on to say, and I think this is a pivotal point:

In our view, provided that the Register is sophisticated enough to allow selective registration, there is no need for exemptions at all. In other words, as long as a registrant can choose to register to avoid calls from e.g. religious organisations, charities and political parties and candidates, and still allow for calls from e.g. existing business contacts, government bodies and market researchers, there is no reason to provide for exemptions to the Do Not Call Register.

In other words, it is saying that if you come up with a register that is sophisticated enough so people can have that ‘opt out of’ process—they can specify who they do and do not want to receive calls from—then why do you need these broad-ranging exemptions in the legislation before us?

In point 26 of their submission to the committee, the Privacy Foundations say:

In addition to the above, there are several other reasons why exemptions are not necessary. First, as is stressed in the Discussion Paper, there are other less intrusive means by which businesses and organisations can approach people. Second, people always have the right to say ‘no thanks’ once the call is made anyhow. Thus, the Register simply constitutes a means for people to say ‘no thanks’ before the harm is done. This observation is perhaps particularly relevant in relation to research calls (which is the call type that may be most heavily supported by a ‘public interest’ argument)—people have the right to decline taking part in the research, and the option of exercising that right through a specific choice on a Do Not Call Register cannot be said to be against the ‘public interest’.

They conclude the exemptions aspect of their submission by stating:

If, contrary to our preference, an exemption is granted for social/market research, it should be linked to clear criteria/definitions, such as the Association of Market and Survey Research Organisations (AMSRO) Market and Social Research Privacy Principles ... which require that no personal information is disclosed to the client.

So, while we are supportive of this legislation, there are still some loopholes.

In relation to other concerns that have been raised publicly and through the committee process, we understand that there may be some costs to local small business communities, especially in terms of the cold canvassing which for many years has been a useful marketing tool. There are also potential costs to small businesses associated with having to search the register to see who is part of it. Nevertheless, those concerns side, we are still satisfied that the greater public good is being served by this legislation and the privacy provisions that are afforded by this bill.

Perhaps the only other issue that may need further clarification is that the government should release the estimates for the register’s access fees as soon as is possible. I do not know if the government have some views on that that they may want to share during the committee stage so that the public is aware of costs, if any, associated with using this service. I will also ask during the committee stage if there are any comments from the government on the recommendations contained in the Senate committee report.

I note in the submission from the Privacy Commissioner that her suggestion was that there be a public awareness and education campaign associated with the introduction of the Do Not Call Register. I am hoping that the government will allocate sufficient resources to ensure such a campaign is able to be established. Having said that, given the miserly amount that was allocated to the Privacy Commissioner—$6.5 million—in the federal budget, I am not holding my breath to ensure that that is done, but it is a worthy recommendation by the Privacy Commissioner, and I hope it will be acted upon.

I move the second reading amendment standing in my name:

At the end of the motion add:

         “but the Senate notes that:

              (a)    the bill does not apply to registered political parties, independent members of parliament, candidates, government departments, religious organisations, charities or educational institutions; and

              (b)    these exemptions risk seriously undermining the value of the Do Not Call Register”.

It is a fairly straightforward amendment that deals with the issue of noting exemptions, particularly exemptions applying to registered political parties, independent members of parliament, candidates, government departments, religious organisations, charities and educational institutions. Those exemptions could actually be dealt with in another way based on the sophistication and the selectivity processes of the register, so those broad-ranging exemptions potentially do undermine the value of the Do Not Call Register Bill. During the committee stage I will seek to remove the exemption that applies to politicians.