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Wednesday, 10 December 1986
Page: 3684


Senator MACKLIN(11.57) —We are debating cognately three Bills-the Australia Card Bill 1986, the Privacy Bill 1986 and the Privacy (Consequential Amendments) Bill 1986. Earlier in this debate yesterday Senator Haines, on behalf of the Australian Democrats, spoke at length about our opposition to the Australia Card Bill and our support for the detailed recommendations of the Joint Select Committee on an Australia Card whose recommendations we have incorporated in a foreshadowed amendment to the second reading motion.

I wish, therefore, to restrict my remarks to the Privacy Bill, which has not been debated to any extent so far. The Privacy Bill is in itself a very significant piece of legislation which goes to the very heart of the relationship between the private citizen within our society and the powers that are operated and held by the state. There are very cogent reasons for the protection of privacy and, fairly obviously, attacks are being made on the privacy of individuals at all levels within our society. I refer here not only to the operation of the powers of the state but also to developments with regard to new technology and the changes that are being made within our financial system, such as the move away from a money or cash economy to a card economy. Authoritarian attitudes and intrusive modern technology combine to undermine the freedom and the privacy of individuals.

The Australian Law Reform Commission, in its excellent 1983 report on privacy, concluded after seven years of investigation into this issue that privacy in Australia is in danger, both in actuality and in prospect. The Commission pointed out that there was an urgent need for new legal protections in this area. The Australian Democrats regret that the Government has taken so long to act on this excellent report and, even worse, that it has watered down some of the Commission's most significant recommendations.

Before turning to the ways in which the legislation before us is deficient, I wish to remind the Senate of the principles that guided the Australian Law Reform Commission in its deliberations. The Commission stated in its report:

An understanding of what is encompassed in the concept of privacy can therefore be gained by seeing privacy in the context of human rights. Basic to all the human rights identified in the ICCPR--

that is, the International Covenant on Civil and Political Rights-

and other international human rights instruments is respect for individual autonomy. Claims to privacy are part of the claim that the autonomy of each individual should be protected and his integrity respected. Privacy claims involve a number of aspects:

that the person of the individual should be respected, i.e. it should not be interfered with without consent;

that the individual should be able to exercise a measure of control over relationships with others; this means that:

a person should be able to exert an appropriate measure of control on the extent to which his correspondence, communications and activities are available to others in the community; and

he should be able to control the extent to which information about him is available to others in the community.

It is under these categories that the Commission's recommendations for reform are made.

I think when one looks at those recommendations from the Law Reform Commission's report on privacy one cannot but be concerned that the Bills before us should have been drafted in the way they have and that they should have been put forward as a package.

Regrettably, the Government has seen fit to depart from these principles of the Australian Law Reform Commission in significant detail. Its attitude to the protection of privacy is clearly indicated in these Bills. The Bills are clearly a watering down of the Australian Law Reform Commission's proposals. In addition, the Bills have been introduced as an adjunct to the Australia Card Bill rather than as a fulfilment of that excellent report of the Australian Law Reform Commission. I think this has cheapened the debate on privacy. Indeed, it has confused and muddied the waters in an area that ought to be dealt with on its own since it is of vital importance to every Australian.

The Privacy Bill and the Privacy (Consequential Amendments) Bill will operate basically as follows: They will establish rules of conduct to be called `information privacy principles' for the collection and the retention of, access to and correction of uses and disclosure of personal information about individuals. The information privacy principles will apply to Commonwealth departments and agencies. A breach of these principles is deemed to be an interference with privacy and Commonwealth agencies will be required to avoid doing things that amount to an interference with privacy, although such interference does not give rise to any civil liability in damages or criminal penalties. Persons alleging an interference with privacy will, under this piece of legislation, be able to complain to the Data Protection Agency which, interestingly enough, will be established by the Australia Card Bill, not this Bill.

The Data Protection Agency will be authorised to investigate complaints and, where appropriate, to attempt conciliation. Where requested to do so by the Minister it will be authorised to examine proposed legislation under which interference with privacy might arise; to monitor activities overseas and in Australia; to promote understanding and acceptance of these privacy principles; to prepare and publish guidelines for agencies; to collate from publicly available sources and publish information on personal information databanks covered by these principles; and to provide advice to the Minister and agencies on other matters. On application by an agency, the Data Protection Agency, which is to be established under the Australia Card Bill, will have the power to determine that an act or practice that is inconsistent with these principles is substantially more in the public interest than compliance with them. The Privacy Bill also provides for certain limited extensions of the law of confidentiality.

The Privacy (Consequential Amendments) Bill 1986, which is being debated cognately, will make amendments to the Freedom of Information Act 1982 to require that where reasonably practicable a person whose personal affairs are dealt with in a document to which another person has sought access is to be consulted before access is granted. The person will be able to object to that provision of access. The Bill will prevent departments claiming exemption under the Act from disclosure of a document to a person, insofar as it deals with that person's personal affairs, merely on the grounds that the document is covered by a general security provision in the legislation. The Privacy (Consequential Amendments) Bill also makes amendments to the Ombudsman Act 1976, the Merit Protection (Australian Government Employees) Act 1984 and the Human Rights and Equal Opportunity Commission legislation, which was passed recently, and others. A reverse referral power is also provided under the Australia Card Bill.

When we go through that piece of legislation and seek to compare it in detail with the recommendations of the Australian Law Reform Commission report on privacy, we are struck by the way that the Government has piecemeal applied and piecemeal left out significant recommendations of the Commission for privacy. It is quite an extraordinary situation where the Government, in defence of the Australia Card, is saying: `We are also bringing in a Privacy Bill and making general arm waving gestures towards the Australian Law Reform Commission', but the Bill that the Government has introduced in many ways makes significant and radical departures from those recommendations, such as making the whole issue of privacy more or less dependent upon the whim of government rather than something which is held personally by an individual within our society. When the Committee stage of the Privacy Bill is reached, which I understand will not take place this year, the Australian Democrats will be supporting it since, as I have already said, this legislation stands on its own and should stand on its own. Of course significant changes will have to be made to it to eliminate references to the Australia Card and it will have to be significantly beefed up to accord with the Australian Law Reform Commission report. We intend moving amendments to do both of those things-to eliminate the Australia Card references and to beef the legislation up-because we believe that Australians are entitled to legislation from this Government dealing with privacy.

There have been significant technological changes, significant invasions of privacy and significant denials of the civil liberties of our citizens, as a result of technological developments, that have to be dealt with and that should have been dealt with three years ago, but which should not have been dealt with in the context of the type of debate we are now having. On behalf of the Australian Democrats I will be moving next year, when we get into the Committee stage on the Privacy Bill, a whole series of amendments significantly to strengthen the legislation and bring it into line with those types of recommendations. We will also, at that stage, seek to establish the necessary investigatory body, that is, the Data Protection Agency, the establishment of which will be defeated at the end of the second reading debate of the Australia Card Bill. We believe that will need to be incorporated in this Bill and we will seek to do so.

Shortly before George Orwell's death in 1949 he wrote that although Nineteen Eighty-Four had been a parody:

. . . this is the direction in which the world is going at present, and the trend lies deep in the political, social and economic foundations of the contemporary world situation.

I think that is very true. There is a possibility that information on individual citizens will be more and more leaked into databases, many of which, of course, are established with the voluntary agreement of citizens and that must not be forgotten. But in seeking to avail themselves of a whole range of benefits and services which are available in our community, from the ability to gain cash from an automatic teller on a 24-hour basis, for example, to the ability to travel overseas and to use a card, citizens voluntarily give part of their personal information to various databanks. We have all been made aware that a number of agencies that we do business with, sell our names and addresses to other people. Hence we find ourselves the unwilling recipients of all sorts of soliciting mail and requests. But we have, voluntarily given our names, and if we look at the fine print on those forms we will see that unfortunately, at the same time we have given those people the ability to sell our names and addresses to others.

There is a whole range of movements that need to be looked at and that need to be dealt with. This Bill deals with only Commonwealth agencies; it does not seek to deal with State agencies. One of the interesting activities of this Government, in its refusal to use its powers to deal with these significant items, is that it does not deal with private agencies that have the ability to intrude significantly into the affairs of individuals in Australia. It seeks to depart, in a major way, from the principles set down by the Australian Law Reform Commission.

I will spell out the principles that have guided us in an attempt to draw up our amendments. The ones which we believe ought to have been in the Government's mind when it was drafting this legislation-they may have been in the Government's mind but it certainly did not pass them along to the bureaucrats who drafted the legislation-are these: Privacy laws should pay due respect to the protection of important human rights and social interests which compete with privacy; they include the general desirability of a free flow of information and the recognition of the rights of government and business to achieve their objectives in an efficient way. Remedies for privacy protection should be clear and specific, not vague and general, some examples of which we find in this legislation. Privacy remedies should build upon, extend and, where necessary, modify the present Australian laws relevant to the protection of privacy. The Government has done that to some degree, but not as far as we would wish. Privacy remedies should be so designed as to permit an aggregation of experience with a view to future extension of privacy protection where that is shown to be needed. The Government has moved in that direction, but again not as significantly far as we would desire.

Although necessarily limited to the Commonwealth constitutional areas of responsibility, the remedies proposed for the better protection of privacy should be capable of acceptance, adaptation and extension throughout Australia. The Australian Democrats believe that the Government, following the 1983 report, ought to have made significant attempts to bring the State governments and the Commonwealth Government together on a general acceptable basis whereby the Commonwealth could legislate and there could have been corresponding legislation by the State governments. This Government has made no such attempt after three years of having had probably the most comprehensive, detailed report ever provided to any democratic government in history.


Senator Button —I am glad you concede that, anyway.


Senator MACKLIN —That is the Commission's report, not the Government's. Next, the remedies should be compatible with international obligations accepted by Australia, including a respect of the international technology of communications. So far as possible, they should also be compatible with developing general international guidelines relevant to the better protection of individual privacy. The Government has accepted basically that principle, though some of its implementation has not been significantly extensive enough to meet the detailed recommendations of the Commission's report. Lastly, the new remedies should be cost-effective, avoiding where possible the creation of expensive bureaucracies and placing due reliance upon self-regulation and initiatives for self-protection. It is very interesting that the Government, in terms of its connection with the Australia Card issue, has significantly departed from that principle.

I return to that warning by George Orwell. I think we should be careful of not neglecting that when we are dealing with the issue of privacy and this Privacy Bill which is before us today. We have a responsibility, I believe, to act on this independently of whether the Australia Card goes ahead or not. We believe that it is of such significance that, in giving our support to the second reading, we hope that the Government will be willing to recast the Bill before next February and eliminate those items on the Australia Card that are in the Privacy Bill.


Senator Tate —You are talking about the Privacy Bill?


Senator MACKLIN —I am talking about only the Privacy Bill, Senator; we should eliminate those items on the Australia Card so that we can have good, operational privacy legislation in Australia at the start of 1987.


Senator Peter Baume —That is the main reason we are opposing it-it is so linked in with the Australia Card.


Senator MACKLIN —It is linked in, but we are giving support to that because we accept the notion of privacy and we believe that that Bill can be amended in significant ways to allow it to operate. We believe that to pay lip service to the protection of privacy is just as bad or possibly even worse than doing nothing. Our amendments that we propose to move next year, we believe, will prevent that occurring. They will, if accepted, we hope present a significantly strengthened Privacy Bill. As far as we are concerned, this is a move which should be applauded and which should be supported. We hope that out of the atmosphere of the Australia Card debate, this chamber will be able to have a more extensive debate in Committee on privacy matters and that these items can be dealt with at length. I note here that our amendments at the second reading stage to the privacy legislation, which has been foreshadowed by Senator Haines, makes reference to that item. Part of the proposed amendment reads:

That the Commonwealth introduce privacy legislation based on the recommendations of the Australian Law Reform Commission Report on Privacy . . .

We believe that, whatever this legislation is said to be based on, there are such significant departures that as it now stands it cannot be supported. We hope that the Government will see that it needs to be significantly amended and will agree to those significant amendments next year.


The DEPUTY PRESIDENT —I call Senator Tate.


Senator Tate —Senator McKiernan is actually next on the speakers list.


Senator McKiernan —No, I have made my speech.


Senator Tate —Mr Deputy President, I had not intended to intervene in this debate but I got a little tired of the constant iteration by Opposition speakers. I think we have had four or five in a row. That is why I am leaping to my feet.


Senator Georges —If an honourable senator wishes to speak, he puts his name on the speakers list and awaits the call.


Senator Tate —I am very willing; that is why--


Senator Georges —I have been sitting here for almost two days now.


Senator Tate —Senator, that is why I gave way to Senator McKiernan when he leapt to his feet. If you leap to your feet, I will gladly give way. Please rise.


Senator Georges —I am not prepared to upset somebody else. I am on the list. Put yourself on the list.