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Thursday, 19 June 2014
Page: 3365


Senator O'SULLIVAN (Queensland) (11:23): Before I address the core issue, I want to take the opportunity to reject some of the assertions that have been made by speakers opposite that would suggest, if left untested, that this side of politics, this coalition of National and Liberal people, do not have a high regard for the rights of citizens, particularly with respect to their right to privacy.

Over many, many decades, federal coalition governments, Liberal governments, National governments independently in the states and quite literally thousands of convened local authorities who share our philosophical view of politics across this country have paid detailed attention to issues relating to the privacy of our citizens and those who look to us to protect those rights.

There has been enormous progress in this area, and I personally am proud to be attached to a coalition that has at its very heart the interests of citizens with respect to privacy issues as we examine legislation and the impact of legislation, looking at it through that very important prism.

It is important today that this debate be put into the context of: it is not opposition on our part to any sensible progressive legislation that would enhance our citizens' rights to privacy; it is an attempt to apply due process that in and of itself does not have the ability to provide the safeguards required for changes to this important class of legislation.

In this debate there has been reference to the ALRC report that resulted in the recommendation concerning data breach notifications. I am sure it has been quoted by other speakers, but to underpin and segue into my next comments, I will repeat it again for the Hansard: agencies and business organisations should be required to notify individuals—and the Privacy Commissioner—where there is a real risk of serious harm occurring as a result of a data breach. Prima facie it would be difficult for anybody to mount an argument against that important principle.

The authors of that report were Justice Berna Collier, Justice Robert French, Justice Susan Kenny, Justice Susan Kiefel, Professor David Weisbrot, Professor Les McCrimmon and Professor Rosalynd Croucher. These are noted jurists and principals from academia with whom I probably have little in common. I am no jurist and I am no academic but I promise you that I share with them the value of their recommendation about enhancing and maintaining privacy protections for the good citizens of Australia.

What does divide us at the moment is that that eminent group of people had no less than 28 months to consider material put before it before they arrived at that recommendation. Their report was 74 chapters and included 295 recommendations for reform—I repeat: 28 months—after they had the benefit of examining and interrogating submitters with over 585 written submissions. They reported that there was a very high level of public engagement.

Their brief, their mandate, is different to the brief and mandate of this place. As a senator, my obligations to the people of Australia have been explained to me in some detail. My obligations are to very carefully make a contribution to, in the first instance, the development of legislation and regulation so that we can continue to improve the orderly, free and protected society that we enjoy here in Australia. Some of the legendary senators of this place have mentored me and counselled me to go steady, to be cautious, to be thorough and to ensure that I consult broadly with the relevant constituencies, to whom I have a particular responsibility to get the situation right, in the same way the commissioners did with this recommendation in their report.

I reject absolutely any assertion made against this coalition government—or, indeed, former coalition governments—which suggests that they did not hold issues of protecting the privacy of the citizens of Australia near to their heart, as they steadily and carefully developed the legislative and regulatory arrangements in which we work. Might I point out that the need for caution and care is to see that any legislation that is adopted by this place on behalf of the citizens of this country does not upset, disturb or, more importantly, produce unintended consequences because it was poorly drafted and not thoroughly considered. At times I myself have been exposed to the frustrations of privacy legislation, where, for example, I needed to represent the interests of my late mother. In a modern and busy society, from time to time, I had the obligation to represent my mother and to make arrangements for her affairs. My mother was 90, and I held her power of attorney, but I found it immensely frustrating that it would sometimes take weeks to resolve matters that were causing her great distress, because of the inhibitions presented by privacy legislation.

I cannot believe that the fathers in this place who drafted that legislation had intended for it to frustrate the circumstances in which I was endeavouring to operate to support my mother. My circumstances presented more than once with aged family and relatives. I know that this frustration also exists for people who are endeavouring to represent people with disabilities—people with new-late-onset disabilities, such as hearing or sight disabilities; Again, I suggest that the drafters of such legislation would have avoided those inhibitions if time had been taken to carefully consider the implications of legislation that they introduced. I am sure that there are those who would correct me and say that legislation was not rushed. Perhaps the rush to the legislation in and of itself is not the only element that we need to be conscious of, as we develop legislation. My life's experience, which sadly is now reaching its sixth decade, has taught me that most things which I have rushed into eventually turn out to be inadequate and do not meet the standards that I had set for myself from the beginning. In fact, I often quote my son who has said to me over the years: 'Dad, most of the mistakes we make in business, we make on the way in, not in there and not on our exit plan.'

The only test that needs to be applied to this debate is whether the journey of this bill has met the test of proper scrutiny. Unlike the tenure of the academics and jurists, who made this recommendation to us, the way this Senate considers legislation is through the very useful and powerful process of Senate inquiry. Many speakers have talked about the undue haste in which this bill was presented to the Senate inquiry in 2013. Some of those quotes are worth repeating to reinforce the principle that this Senate should reject this legislation, not on the basis of its merit nor of its underlying philosophy—that of protecting our citizens' privacy, which all of us would support—but on the basis that the process, if done with haste, is flawed and would expose us all to adopting legislation that is ill-considered and ill-tested. When you have bodies of the quality of the Cyberspace Law and Policy Centre at the University of New South Wales or the Australian Privacy Foundation, who speak out against the haste with which this legislation has been considered, then we should listen.

I recently received a quote which suggested that the amount of contemporary information retained today is greater than the aggregate amount of information accumulated since mankind has been keeping records. I understand that each year that will remain true. For example, in 2015 we will have a body of data collected on earth that is greater than all information recorded before it, including data created in the calendar year of our Lord 2014. So this is a very serious issue. Electronic data started to have accelerated accumulation about 45 years ago and society are still coming to terms with the collection, the storage and the additional responsibilities that go with this.

As I recently commented when the head of Australia Post came to this place to complain to us that Australia Post was starting to experience difficulties in the reduction of the volume of thin mail—that is, letters with a stamp affixed to the corner—my initial reaction was, 'Who didn't see that coming?' I would make the same comment with respect to the collection and our responsibility as a nation, as a government and, indeed more specifically, as the Senate, to look at, to prepare and to give passage eventually to legislation which secures and enhances those areas of responsibility relating to the collection and the management of data for and on behalf of our citizens. Given these challenges have progressively been coming into our lives over the last 45 years, I too ask the question: what is the rush? We need to go very steadily in this space. We have an obligation to consult. While the jurists and the academics have a responsibility to interrogate and recommend, we have the responsibility to test and examine and to test and examine, and to do so exclusively with the people who have an interest in relation to the outcome of this legislation. For me, that is code for me going back to my constituency in the state of Queensland, talking broadly with groups, organisations and individuals as we make this very important journey to continue to protect the environment in which data is held.

This matter will only grow in stature and importance as time passes. Legislation that we introduce needs to consider what I call across-the-horizon considerations. I once saw a skit on the television where Moses was coming down from Sinai with what appeared to be three tablets which, the impression was, contained the Commandments. It was meant to be a funny skit and Moses fell over out of sight of the camera. There was much breaking of granite and when he raised up, he had a very suspicious look about him as he scurried down the mountain with only two tablets under his arm; the suggestion being that the third tablet may have helped our modern society interpret contemporary guidelines with respect to offences and conditions existing today which perhaps were not anticipated or considered in the time of Moses.

History has always had to deal with this challenge. As time progresses and contemporary life brings new demands to our society, and challenges for legislators and law enforcement, we will always have to contemplate continuing changes with legislation and regulation to support our citizens.

I want to close by saying that I will never, in the time I am here—short or long—engage in the adoption of legislation which I am not personally satisfied has been scrutinised, examined, road-tested and considered very broadly by the society I represent. There will be times when that will no doubt get me into some trouble but if legislation does not meet the test of being good public policy and good law which is there to support our society's very important protections—such as data privacy—then I will not support the legislation.

Let me close simply by quoting an unattributed statement which says, 'At times it is folly to hasten and at other times to delay. The wise do everything in its proper time.' I urge colleagues, wherever you sit in this chamber, to support any initiative or move which ensures that this important legislation, which is capable of being supported by everybody, is given the proper time for consideration.