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Friday, 16 June 1989
Page: 4290


Senator MACKLIN(3.33) —The amendments which we were discussing on a previous occasion and are now returning to in this particular Bill go not so much to whether anybody wishes to protect criminals but rather to the method by which information will be delivered to various agencies so that those criminals may be apprehended. It is a matter of probably careful judgment as to how far one would wish to go in this regard. It was the same last time we were discussing this matter. There is a trade-off between two principles; that of the privacy principle and the principle that people who break the law ought not to be able to do so with impunity.

The Minister raised a couple of points. The first point that was of concern to me last time relates to the functions of the Commissioner under section 27 (1) (b) of the Privacy Act. I am concerned that this particular proposed enactment was not referred to the Privacy Commissioner. I wonder whether the Minister would wish to respond as to whether the Government intends this particular portion of the privacy legislation to actually have some effect. Is there going to be-I would have thought there ought to have been since it was the Government's own legislation-a policy in place which of necessity means that any Minister who brings in any piece of legislation that has items such as this in it should before they do so seek from the Privacy Commissioner any comment that the Privacy Commissioner might wish to make under section 27 (1) (b). If it does not, why did the Government put it in its own legislation?

Hopefully it was not put in to simply quieten us all down at the time that this particular legislation was going through. Hopefully it was meant to be a genuine exercise whereby additional legislation would come under the scrutiny of the Privacy Commissioner. I do not know why this was not enacted in this legislation. It was the first major item of departure from the principle of strict privacy on taxation matters that we have had since the Privacy Bill was passed. That being the case, one would have thought that as a matter of course it would have gone off. It seemingly has not done so. That to me is of great concern. I am not talking of the Minister for Justice, who is in the chamber, because I know he has a very deep personal interest in this matter; I am talking here of the Government in general. It worries me because, in response to Senator Stone's amendments, my initial reaction was a positive one. But on later reflection my concern was that it may run across the work of the Privacy Commissioner in hopefully building up the importance of the Privacy Commission in the work that it has to do, which, as I think we are all very much aware, will become more difficult particularly as the growth of technology provides information flow at an ever increasing rate.

My confidence in not accepting Senator Stone's amendment has been very much dinted by the way that the Government has dealt with this matter. Unless the Minister is able to assure the Committee and, in particular, my Party that the Government has the confidence in the Privacy Commissioner that it presumably did when we passed the legislation and that it does intend as a matter of course to apply section 27 (1) (b) to future departures from the privacy principle, one would have to go back and have another very close look at the propositions that Senator Stone is putting. Senator Stone's propositions are based on an alternative method of dealing with these matters. If the Government is not going to pursue its own proposition we should know fairly quickly so that we may be able to produce something else that can actually provide the privacy that most Australian citizens are entitled to.

I find Commissioner O'Connor's response to the Human Rights Commission's letter which the Minister has given me a copy of is an acceptable proposition. I do not find acceptable the Government's actions with regard to what it has done so far. Unless it lifts its game I am not quite sure how we can rely on the Privacy Commissioner who will not even know about these things until they have been enacted. At that stage it is far too late. The Parliament having expressed its views, it is neither here nor there with regard to what the Privacy Commissioner will do; the Parliament has already told it what it will do. The Commissioner will have no role whatsoever, whoever the Commissioner happens to be. However, if the Government intends to fully utilise the Act that was passed by this Parliament with regard to the Privacy Commissioner we would rest on that, at this particular time, as a model which we would wish to pursue and build up. The Commission has within it, certainly in terms of the way the legislation was drafted although not in the way it has been applied, all the powers that would be necessary at this juncture to protect the privacy of Australians. However, if the Government intends to pursue the course it has to date I do not think the Privacy Commissioner has a leg to stand on.