Privacy Law and Policy Reporter
Natasha Stott Despoja
Senator Stott Despoja, Consumer Affairs spokesperson for the Australian Democrats, outlines the approach the Democrats have taken in Federal Parliament to privacy issues. The Bill introduced by the Senator is available at http://hansard.aph.gov.au/repsto/97146.pdf The full text of each Parliamentary debate referred to in this article may be found on the Democrats home page Parliamentary index at http://www.democrats.org.au/democrats/parliament/index.html by selecting the dates referred to (General Editor).
In recent weeks I have introduced a Private Members Privacy Amendment Bill 1997 to extend the operation of the Privacy Act 1988 to all sectors of the Australian community. The debate of this Bill has stalled at the second reading stage and now remains on the Notice Paper awaiting further debate. This measure is the last in a series of actions by the Australian Democrats to bring a range of concerns to the Government about privacy laws in Australia.
I have advocated a comprehensive national legislated scheme where the community is either covered by legislated privacy principles or develop their own codes of practice with the co-operation of the Privacy Commissioner which are tabled before the Parliament as disallowable instruments. The codes of practice are intended to maintain comprehensive and enforceable privacy protection with powers conferred on the Privacy Commissioner which are similar to those presently set out in the Privacy Act 1988. This is essential to keep pace with the developments in other countries and the advances in information collection and exchange technology. We are all likely to benefit from such a scheme, through continued access to the world data flows and the confidence of consumers that their personal information is adequately protected in their dealings with their information.
Over the last year privacy has travelled a rocky road. On 12 September 1996 the Attorney-General released a Discussion Paper which set out a scheme based on the existing Information Privacy Principles in the Privacy Act 1988 and added to this Codes of Practice and a range of additional provisions which addressed the particular concerns of the private sector. Then on 21 March 1997 the Prime Minister announced the Privacy Act 1988 would not be extended to the private sector. The Prime Minister ended Australia’s chance at an international best practice privacy scheme which had cross-party support in the Parliament. The reasons for this decision are still unclear. This was also another broken election promise.
In response to this ‘backflip’, I tabled an exposure draft Privacy Amendment Bill 1997 on 25 August 1997 with a view to seeking the support of the Senate to refer the matter to a Committee for further investigation and comment. The Committee process is a good forum to bring out a range of issues focussed on the need to implement legislation extending privacy to the private sector. I appreciate there are different views on what is the most appropriate outcome, but it is essential that this outcome follows a decision based on an informed debate following consultation with the community. I believe the Prime Minister’s ‘backflip’ failed to take into account all the relevant concerns and the Committee process would have placed all submissions on the record and required a report setting out the different views. This forum exposes a diversity of views, educates the Parliament about the relevant issues and forces decision makers to take these diverse views into account in reaching their decisions.
On 27 August 1997 I moved a Matter of Urgency debate in the Senate: ‘The failure of the Government to introduce legislation amending the Privacy Act 1988 to all sectors of the Australian community’. This debate was vigorous, but failed on the final vote 32 to 32, with some Senators failing to vote. This debate was significant in that there was support from both the Labor Party and the Greens.
On 28 August 1997 I moved a motion referring the exposure draft Privacy Amendment Bill 1997 together with other terms of reference to the Legal and Constitutional Committee. These other terms included an examination of the need for Commonwealth legislation to be extended to the Australian community having regard to relevant international standards and obligations, international comparisons, current legislative and other frameworks for regulation in the Commonwealth, States and Territories, the role, responsibilities and practices of Commonwealth, State and Territory governments, the needs and responsibilities of the private sector and the rights of consumers. This motion was rejected by the Senate on 23 September 1997, 41 votes to 10. The Coalition and Labor Party combined to vote against this motion, while the Democrats, Greens and Senator Harridine voted in favour. If the Labor Party had voted the other way the motion would have passed and the Legal and Constitutional Committee would be gearing up to investigate privacy laws in Australia now.
The reasons for the Labor Party ‘backflip’ following their keen support in earlier debates is uncertain. Since then, Labor’s Senator Nick Bolkus has stated: ‘The proposal by the Australian Democrats to establish a Senate inquiry is misguided. We have had inquiry after inquiry into this issue — all of which have come to the same conclusion — that the private sector must be subject to the Privacy Act’. There is some merit in this conclusion, except that there was something different before the Prime Minister which affected his decision. The Government Discussion Paper was consistent with other inquiries, but his decision went the other way. What made him change his mind? Further, the rapid advances of the information economy are arguably more pressing now than ever before and it is appropriate that this concern should be elucidated by the Parliament. However, I see this result as a commitment on the part of the Labor Party to extend privacy to the private sector, which is certainly welcome. This confirms the statements of the former Labor Attorney-General and represents a clear difference from the Labor stance on this matter when the Privacy Act 1988 was passed.
The Australian Democrats will continue to seek amendments to any Government amendment of the Privacy Act 1988 with a commitment to extending privacy to all sectors of the community. We now expect the support of the Labor Party. The Democrats have always advocated the private sector should be covered by a legislated privacy scheme. When the Privacy Act 1988 was being debated in the Senate, Senator Janine Haines moved an amendment to cover the private sector which was defeated by the then Government and Opposition. Interestingly, the Coalition required privacy legislation in order to agree to the then Government’s move on tax file numbers.
Unfortunately, achieving private sector privacy through amendment to the Government’s proposed amendment to the Privacy Act 1988 is by no means a certain result. On 1 May 1997 the Minister for Finance, John Fahey, announced he would make amendments to the Privacy Act 1988 to provide protection for outsourced government information. This legislation is expected in the Parliament before Christmas this year. Having said this, I am unsure about the Government’s resolve for this legislation, and I believe they might be indifferent to the legislation being passed. The Government has indicated that stringent contractual conditions may be sufficient. Add to this the Government’s superior numbers in the House of Representatives, and it is possible the legislation will never pass both the House and Senate in a form that extends privacy to the private sector. Therefore, amending the Privacy Act 1988 through adding onto Government amendments is no guarantee to getting privacy protection in the private sector. Other avenues must also be pursued to place on record the empirical evidence for a comprehensive and enforceable privacy scheme.
On 15 August 1997 the Privacy Commissioner released a proposal for a self-regulatory and voluntary privacy scheme. This is a commendable response to what the Privacy Commissioner herself describes as a broad consensus that there is urgent need for a national consistent framework for the protection of information privacy. Her framework is a best attempt to cover up the privacy vacuum left by the Government, but falls very short of the kind of scheme Australians were promised at the last election. This is supported by the response of a range of consumer and other groups to boycott this consultation process because of is self-regulation and voluntary nature. I recognise this concern and reiterate that a voluntary and self-regulatory scheme is not sufficient. To be effective privacy must involve the whole community and have legislated enforcement provisions.
Following on from these developments the Australian Democrats moved amendments on 29 September 1997 to the Commonwealth Authorities and Companies Bill 1996 to ensure all Commonwealth authorities and companies are covered by the Privacy Act 1988. This amendment failed because of joined voting by the Coalition and Labor Senators.
Despite these set backs to date, I hope to pursue this matter further in the Parliament. The Australian Democrats have been advocates of this issue for a long time. We are happy with the recent developments from both the major parties which show a concern for privacy and a slow recognition of its central importance in business and our (global) community.
Natasha Stott Despoja, Senator for South Australia.