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Privacy Amendment (Private Sector) Bill 2000

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PRIVACY AMENDMENT (PRIVATE SECTOR) BILL 2000

AMENDMENTS MADE BY THE SENATE

HOUSE OF REPRESENTATIVES STATEMENT OF REASONS FOR DISAGREEMENT WITH CERTAIN PROPOSED AMENDMENTS

 

The House of Representatives disagrees with the following amendments made by the Senate to the Privacy Amendment (Private Sector) Bill 2000:

Senate Amendment 1

The Bill was originally to commence 12 months after Royal Assent or on 1 July 2001, whichever is later (now, effectively, 12 months after Royal Assent).  This amendment amended the Bill so that it will commence on 1 July 2001.

The 12 month lead in time is essential for business to get ready for the legislation.  Organisations will need to reassess their practices and procedures and develop new ones that comply with the legislation.  Organisations may also wish to develop privacy codes for approval by the Privacy Commissioner.

The Privacy Commissioner will also need this 12 month period to educate business and consumers, develop guidelines and assist business with the development of privacy codes.

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendment 2

The objects clause in the Bill currently describes the objects as being to establish a national scheme for the appropriate handling of personal information in a way that:

i.       meets Australia’s international privacy obligations;

ii.     recognises individuals’ interests in protecting their privacy; and

iii.   recognises important human rights and social interests that compete with privacy.

The amendments to this clause made by the Senate are unnecessary.  They are already encompassed by the broad object statements in the current objects clause and add nothing of substance.  Accordingly, the House of Representatives does not accept this amendment.

Senate Amendments 3, 6, 7, 8 and 32

These amendments insert new provisions into the Bill to define ‘DNA sample’, ‘family member’ and ‘genetic information’.  The amendments also insert ‘genetic information’ into the existing definition of ‘health information’ and insert two new sub-principles into National Privacy Principle 10 to deal with the disclosure of ‘genetic information’.

When enacted, the Bill will apply to information about individuals that is derived from genetic technologies to the extent that the information could constitute ‘personal information’ about an individual.  To the extent that genetic information constitutes ‘health information’, it will be subject to the same level of privacy protection afforded to ‘sensitive information’ under the Bill.

The House of Representatives acknowledges that genetic information and, more generally, advances in gene technology, raise unique and complex privacy and discrimination issues.  The resolution of these issues will affect a wide range of sectors of the Australian community and therefore merit a more specific response.

The House of Representatives notes that the Government has announced that it will refer the complex issues raised by developments in gene technology to a joint inquiry of the Australian Law Reform Commission and the Australian Health Ethics Committee of the National Health and Medical Research Council.  The House of Representatives considers that until it has the benefit of the result of the inquiry, it would be premature to accept the amendments proposed by the Australian Democrats.  Accordingly, the House of Representatives does not accept these amendments.

Senate Amendments 4, 5, 17 and 18

These amendments operate to change the structure of the employee records exemption in the Bill and significantly narrow it.  As a result of the amendments, the only types of employee records that would be exempt from the Bill would be those relating to an employee’s engagement, training, discipline, resignation, termination, performance and conduct.  All of the other information on a typical employee record would be subject to the provisions of the Bill.  This will impose unnecessary administrative and financial burdens on Australian employers.

The Government has announced that it will review existing Commonwealth, State and Territory laws to consider the extent of privacy protection for employee records and whether there is a need for further measures.

The House of Representatives does not consider it necessary or appropriate to impose such burdens on Australian employers without giving proper consideration to the need for such controls.  Accordingly, the House of Representatives does not accept these amendments.

Senate Amendment 9

This amendment deletes the current definition of ‘personal information’ in the Privacy Act 1988 and replaces it with a new definition that includes reference to ‘directly or indirectly’ identifying an individual by reference to information or an opinion.  The current definition of ‘personal information’ in the Act has worked well in the public sector for over 12 years.  This definition is also used in the Freedom of Information Act 1982 and referred to in the Customs Administration Act 1985 .

The definition is fundamental to the operation of the Privacy Act, which regulates ‘personal information’ contained in records.  Changing the definition would require an in-depth analysis of possible ramifications as well as consultation with the Office of the Federal Privacy Commissioner.  This analysis and consultation has not been undertaken.  Accordingly, the House of Representatives does not accept this amendment.

Senate Amendment 10

This amendment inserts a definition of ‘tenancy information’ into the Bill and is related to other amendments to the small business exemption that would deny the exemption to small businesses in relation to any tenancy information that they hold.

The House of Representatives is of the view that it is not appropriate for one particular group of businesses to be singled out in the Bill which is of general application.  The Bill provides the Attorney-General with the power to prescribe small businesses or particular acts or practices of small businesses that should be brought within the ambit of the Bill.  This is the appropriate mechanism to be used to address the issue of tenancy databases in the event that, after this Bill comes into effect, there is evidence that such action is necessary.  Accordingly, the House of Representatives does not accept this amendment.

Senate Amendments 11 and 12

These amendments amend the definition of ‘organisation’ in the Bill.  They provide that a ‘small business operator’ is deemed to be an organisation (and therefore subject to the Bill) in relation to acts and practices concerning employee records and tenancy information it holds.  In addition, amendment 12 deems a small business operator to be an organisation if it accepts online payment for goods or services.

The effect of amendments 11 and 12 will be that a small business could be exempt in relation to some of the information it holds and subject to the Bill in relation to other information.  The House of Representatives considers that these amendments will create unnecessary complexity and uncertainty in relation to the application of the Bill.  The House of Representatives also notes that simply accepting payment online has nothing to do with real privacy risk and is not a proper basis for subjecting a small business to privacy regulation.  Accordingly, the House of Representatives does not accept these amendments.

Senate Amendments 13 and 14

These amendments alter the small business exemption in the Bill.  Amendment 13 deletes paragraph 6D(4)(c) of the Bill and substitutes a provision which provides that a small business will be denied the benefit of the small business exemption if it discloses personal information other than with the consent of the individual or as required or authorised by or under legislation.  Amendment 14 deletes sub-clause 6D(7) of the Bill.  These amendments narrow the scope of the small business exemption and effectively introduce a new, broader consent based element into the exemption.

The small business exemption in the Bill has been balanced to ensure that small businesses that pose a particular risk to privacy will not be able to benefit from the exemption.  Accepting these amendments would mean that many small businesses would be denied the small business exemption without any evidence that they pose a risk to the privacy of individuals.  Accordingly, the House of Representatives does not accept these amendments.

Senate Amendments 15 and 16

These amendments remove the mechanism that allows a small business that has chosen to opt-in to the coverage of the Bill to revoke that choice.  The opt-in facility is designed to enable otherwise exempt small businesses to take advantage of the commercial benefits that sound privacy practices can generate.  It is not appropriate to remove choice from small businesses.  As the small business opt-in facility is voluntary, the House of Representatives considers that these amendments would be a significant disincentive to small businesses opting-in to the legislation.  Accordingly, the House of Representatives does not accept these amendments.

Senate Amendment 20

This amendment restricts the circumstances in which related bodies corporate are able to share personal information.  It provides that related bodies corporate can only share personal information with each other if (i) National Privacy Principle 1 (NPP 1) has been complied with; and (ii) it would not exceed the reasonable expectations of the community.

Addition of the Senate’s blanket requirement to comply with NPP 1 is unnecessary.

Under the Bill as amended by the House of Representatives, an organisation subject to the Bill will be required to comply with NPP 1 when collecting information regardless of whether it intends to take advantage of the ability to share information with a related body corporate or not.  Further, where an entity that is not required to comply with the National Privacy Principles shares the personal information with a related body corporate, the receiving body corporate must comply with the National Privacy Principles (or code equivalent) relating to collection when accepting that information.

An objective reasonable expectations test would seem to add little to the protection that is already afforded by NPP 1.  Accordingly, the House of Representatives does not accept the Senate’s amendment.

Senate Amendments 27 and 28

Amendment 27 gives the Privacy Commissioner power to issue a breach notice where, in the Privacy Commissioner’s opinion, an organisation has failed to comply with a determination issued by him/her.  Amendment 28 provides for the Federal Court to impose a maximum penalty of $50,000 where the breach notice is not complied with.

The amendments allow a court to issue a penalty based only on the fact that the time for compliance nominated on a breach notice issued by the Privacy Commissioner has expired.  This arrangement denies the court the ability to determine for itself whether there has been an interference with privacy.  That is, the court is unable to make an independent assessment of the basic allegations made against the organisation before the penalty is imposed.

These amendments go well beyond the co-regulatory approach in the Bill and attempt to impose a penalty provision that is not justified.

Accordingly, the House of Representatives does not accept these amendments.

Senate Amendments 29, 30 and 31

These amendments separate the provisions dealing with access to health records from the general access and correction provisions in the Bill.  They insert new sub-principles into National Privacy Principles 6 which deal specifically with access to health information.  The amendments would have the effect of limiting the ability of record holders to legitimately deny an individual access to health information.  In addition, the amendments seek to provide that an individual may access health information of a factual nature regardless of when it was collected, but may only access health information containing matters of opinion if the information was collected on or after the date of commencement of the Bill.

The House of Representatives considers the treatment of access to health records in the Bill to be balanced and appropriate.  The House of Representatives notes that extensive consultation was undertaken in the development of the part of the Bill dealing with health information, including extensive consultation by the Privacy Commissioner.  The amendments disrupt the balance achieved through that consultative process.  Accordingly, the House of Representatives does not accept the amendments.

Senate Amendment 33

This amendment introduces a new National Privacy Principle into the Bill designed to provide special protection for the personal information of children.  On a preliminary examination of the proposed amendment, the House of Representatives considers there are problems with it.  For example, there is no definition of ‘commercial service’. Any organisation providing services to children on a for-profit basis would potentially be covered, including childcare centres, schools and medical practices.  The provision could impact on the rights of the child, for example, the child’s right to free speech and the child’s right to seek medical assistance or professional advice on their own behalf.

The House of Representatives is also concerned about the possible interaction of such a provision on the operation of State and Territory laws, particularly those dealing with the protection of children and reporting of child abuse.  Privacy legislation should not be used as a basis for inhibiting a child’s right to impart personal information to a responsible person if that child is suspected of being at risk of abuse.

The House of Representatives agrees that the notion of children’s privacy has merit (subject to the necessary consultation occurring in relation to the issue) and could be examined further.  However, there has not been sufficient consultation in relation to the proposal to allow the amendment to be accepted.  Accordingly, the House of Representatives does not accept this amendment.