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Tuesday, 27 November 2012
Page: 9829


Senator HUMPHRIES (Australian Capital Territory) (13:45): I want to indicate that the coalition will be supporting the Privacy Amendment (Enhancing Privacy Protection) Bill 2012, but I indicate that it does so with a sense that this parliament will be putting through legislation which is, frankly, far from satisfactory at this point in time. When this legislation was introduced into the other place by the Attorney-General, Ms Roxon, the language used to describe what the government was trying to achieve was little short of hyperbolic. It was extravagant language about further protecting the privacy of Australians. It described this as being about advancing Labor's agenda—language that would make one think that a major reform was being engineered into Australian law. At some levels, with several very significant changes to the way in which privacy is protected and enforced in Australia, that is what might be said to be happening. But it was also very clear in the course of the Senate Legal and Constitutional Affairs Legislation Committee's inquiry into this legislation that this legislation does not represent a carefully worked-through piece of law-making which addresses the needs of stakeholders and which addresses concerns raised by critics in the course of the consultation process, which went on over a period of some four years between the report of the Australian Law Reform Commission, which triggered this legislation, and the presenting of the legislation itself in the federal parliament this year. Many stakeholders, in fact, were dismissive to the point of contempt of what the government was attempting to do with this piece of legislation.

I want to quote a few examples of some things that have been said about the legislation by some of the stakeholders, some of whom appeared before the Senate inquiry. Dr Anthony Bendall, the acting Victorian Privacy Commissioner, in his submission to the Joint Parliamentary Committee on Intelligence and Security inquiry responding to proposals within the Attorney-General's discussion paper on national security reforms, had this to say:

Not only does this completely remove the presumption of innocence which all persons are afforded, it goes against one of the essential dimensions of human rights and privacy law: freedom from surveillance and arbitrary intrusions into a person's life.

Ms Katherine Lane, the principal solicitor from the Consumer Credit Legal Centre in New South Wales, said of the bill's readability and how well people were being prepared for their new rights and obligations:

No, there has not been anything. Nothing at all. It is alarming … every time I mention it to a client, they go white. They have no idea that any of this is coming. It will have a profound impact on the way they manage their household budget and their lives and their loans. Australia spends a huge amount of money on financial literacy, but we have not got anything happening on this.

This comes from an organisation designed to explain to people their rights—an organisation which you might expect would be very supportive of attempts by the federal government to improve the regime and the clarity of the regime with respect to privacy. But no. They are extremely concerned about the way in which this information and this new regime will be transmitted to people who are supposed to be the beneficiaries of it.

The Law Council of Australia added to this general tone with this quote:

… a number of large penalties contained in the legislation are out of proportion to the gravity of the contraventions involved … The Committee regrets the availability of such significant penalties for events that may be trivial and may happen very quickly if an error arises.

Mr Simon Remington, Managing Director of Remington Direct, an organisation involved in direct marketing—which is very heavily affected by this legislation—said:

… the inclusion of a "prohibition on direct marketing" will cause considerable confusion with our clients as to whether direct marketing is permitted or not. This will have a direct, financial and reputation effect on our business.

…   …   …

This decision would unquestionably cost many jobs within our industry plus within companies who use direct marketing to grow their business.

That was the direct marketing industry. Perhaps they have a vested interest. On the other hand, we have the banking industry. The Australian Bankers' Association noted in respect of this legislation:

… as far as the general privacy provisions are concerned, the proposed implementation timeframe in the Bill will be insufficient for our members to implement those reforms effectively.

This is simply a small dip in the water with respect to these sorts of comments.

To come back to Dr Anthony Bendall, the acting Victorian Privacy Commissioner, in his submission on national security reforms, he said further:

… this is concerning given the breadth of the term 'operational flexibility' … the level of variation required needs to be carefully considered and should be extremely limited. Courts are (rightly) vested with authority to grant warrants; allowing 'operational flexibility' to vary a warrant could potentially allow extension of a warrant beyond what was authorised by the court.

These are fundamental protections available in the law to people who might be caught by changed provisions in the law and they are clearly not properly addressed in the bill. Nigel Waters, from the Australian Privacy Foundation, had this to say:

Our overall conclusion is that, while there are some improvements, there are also many ways in which the bill would significantly weaken privacy protection for Australians—the direct opposite of the bill's title.

This is in the face of Labor announcing when its legislation was introduced that 'Labor is protecting the privacy of working families'. Well, not according to the Australian Privacy Foundation.

Some of these stakeholders went to the point of saying that this legislation is so bad that it should not pass. It is particularly reprehensible to hear those sorts of comments when this legislation has had four years in gestation—four years since it was recommended that this legislation be put together; four years of some sort of consultation. I do not know who conducted the consultation, or how, but it was obviously not very good consultation because it has left us with the situation, when the legislation is actually introduced, where stakeholders are lining up, one after the other, to tell us how bad it is.

The second reading speech by the Attorney-General announced that 'Labor is tightening up the rules around how companies and organisations can collect, use and disclose personal information'. The Australian Privacy Foundation said about that concept that in Australian Privacy Principle 3.4(a) it was:

… without any justification for why the deliberately more protective wording has been abandoned in this specific concept. We reject the wholesale implication of the very vague and subjective term 'authorised'.

Michael Holcroft, from the Law Institute of Victoria, said:

The phrase 'reasonably necessary for … one or more of the entity's functions or activities' is too broad.

Professor Graham Greenleaf from the Privacy Foundation said:

… what we have ended up with with the APPs is in fact a serious step backwards. On our detailed analysis in this paper, eight of the 13 principles are weaker than the NPPs or IPPs, so we have no advance. A number of them are very seriously defective.

I could spend the rest of my available time in this debate simply reading what stakeholders have had to say about their concerns about this legislation.

Having put that on the record, I have to indicate that, on balance, the views of stakeholders, particularly those in the financial sector—the credit providing sector, which is perhaps most directly affected by these changes—was to the effect that the legislation ought to pass, with a substantial lead-in time before it actually becomes operational to allow the important financial mechanisms around this legislation to be bedded down and implemented because such a large investment has been made by particularly the credit providing sector in Australia that it would be inappropriate to further delay the implementation of this bill while these kinks were ironed out.

So, with some reluctance, the coalition indicates that it will support this legislation while welcoming the amendments which the government has drafted, and which I understand it will be putting before the chamber shortly, to reflect in part the recommendations made by the Senate Constitutional and Legal Affairs Legislation Committee majority and also by coalition senators when reporting on this legislation. But I want to make it very clear that these amendments do not completely fix the problems with this bill. We have a very substantial set of issues which are not properly addressed here and which even officers of the Attorney-General's Department admitted to the Senate committee would have to be dealt with by some process which was not at this point determined. There will have to be further work done to resolve questions which, unless properly addressed, could lead to some conduct being criminalised, or at least made unlawful, by the legislation and the means by which those issues could be resolved have not yet been determined.

It gives me no joy to say that this legislation will pass the Senate today. I believe we have not served the Australian community well by putting forward legislation in this form at this time. It would be more appropriate for the government to have done the kind of homework which it obviously has not been able to do before bringing this forward. Witnesses before the committee reported that the legislation had certainly taken a very long time to come forward and were disappointed that, despite the elapsing of such a long period of time and there being so many attempts at consultation, we still ended up with a quite unsatisfactory piece of legislation in the eyes of many of the stakeholders.

The consistent complaint of many of the parties was that the provisions of the legislation were difficult to understand, that they were vague, that the Australian Privacy Principles were such that they could mean one thing to one person and a quite different thing to another person. That, of course, is not a sound basis on which to enact major sweeping changes to the state of the law. There was also concern that some behaviour which is presently lawful within the community and which is business practice for a number of entities in the marketplace, including particularly with respect to online marketing, would henceforth be illegal or potentially unlawful by virtue of the application of this legislation. I am thinking particularly of provisions which potentially make it impossible for online entities such as Yahoo!, Google and Facebook to provide advertising to their customers because the provisions dealing with direct marketing might be said to make those sorts of practices, which are common not just in Australia but around the world, unlawful in the future.

We are faced with a quite difficult set of circumstances confronting the Senate. We either leave this situation unresolved or we pass a piece of legislation which, on the admission of most stakeholders, is flawed and in some people's view is quite seriously flawed. It is the view of the coalition that this should be done on the basis that we proceed to make these changes but come back, hopefully with a sense of urgency in the lead-in time prior to the beginning of the legislation, to make the remedies that are necessary in this situation.

Debate interrupted.