Forwarded From: Nelson Murilo <nelson@pangeia.com.br>
Originally From: Julian Assange <proff@iq.org>
Australian House of Representatives Hansard for 1st April 1998
PRIVACY AMENDMENT BILL 1998
Mr WILLIAMS (Tangney--Attorney-General) (12.41 p.m.)--I propose to close
the debate on the Privacy Amendment Bill 1998 and, in doing so, I would
like to thank those members who contributed to it: the member for Banks
(Mr Melham), the member for Fisher (Mr Slipper), the member for Blaxland
(Mr Hatton), the member for Dickson (Mr Tony Smith), the member for
Charlton (Mr Robert Brown), the member for Sturt (Mr Pyne), the member for
Batman (Mr Martin Ferguson) and, lastly, the member for Bonython (Mr
Martyn Evans).
To some extent it has been an interesting debate, and it is obvious that
members of this House have a keen interest, as does the community, in the
subject of privacy protection. But to a large degree the debate has been
irrelevant to the bill. The reason it is irrelevant to the bill is that
most of the speakers, particularly from the opposition, have been
addressing the second reading amendment moved by the member for Banks
which does not address the bill but addresses what the bill does not do.
This is, as I said, interesting, but it is not particularly helpful in
considering the bill. In fact, I think only about two issues were raised
in relation to the subject matter of the bill itself. Let me say at once
that the government oppose the amending motion of the member for Banks and
we propose to vote against it.
I also want to comment again on the manner in which the opposition deals
with bills in this House, and in particular bills in my portfolio. We
have, yet again, the member for Banks coming in, unprepared to move
amendments to the bill but prepared to foreshadow that the shadow minister
in the Senate will move amendments. This is a continuing and constant
insult to the House of Representatives. The member for Banks must accept
responsibility for it, although the ultimate responsibility rests with the
shadow Attorney-General, Senator Bolkus. Senator Bolkus must be just about
the laziest shadow minister that there ever has been. He is never prepared
to state what the opposition position is on a bill. He is never prepared
to allow amendments to be considered in this House. We do not even know
until the very last minute what amendments Senator Bolkus proposes to
portfolio bills in the Senate.
I think the Leader of the Opposition (Mr Beazley) really ought to take a
long hard look at the position of his shadow Attorney-General and just
ask, `Is he doing anything?' He is certainly not assisting the member for
Banks, as his representative, to do his proper job in this House. I
repeat: it is a continuing insult to the House of Representatives that it
is treated in this way by the opposition.
The government is acting on privacy protection in the private sector as a
whole. On 20 February, the Privacy Commissioner and I launched national
principles for the fair handling of personal information. These principles
were developed by the Privacy Commissioner through a process of intensive
consultation with business, privacy, consumer and government
representatives. The Privacy Commissioner will now continue her
consultations to assist business to implement the principles and to work
out means by which they may be enforced. In this way, the government
believes that privacy protection in the private sector can be ensured
without imposing heavy-handed regulation on business. I can add in this
context that the privacy principles received the support of some 14 peak
body organisations at the time of their release. Those bodies were largely
involved in the consultations resulting in their development and they will
be involved in the consultations relating to the development of
implementation mechanisms.
The government took the approach of seeking a self-regulatory regime for
privacy protection in the private sector following extensive consultations
with the private sector. The member for Banks has mentioned the release of
the discussion paper in September. This resulted in a significant number
of formal submissions, formal representations, and the submissions
revealed concern about the cost implications for business of a
heavy-handed regulatory approach. The government was committed in its
election policy and continues to be committed to reducing the regulatory
burden on business and particularly on small business. The government
firmly believes that privacy protection can in fact be achieved in the
private sector without imposing unnecessary legislative burdens on
business.
A number of speakers have referred to the European Union directive and
have raised a spectre of alleged adverse trading consequences for business
in Australia if that directive is not complied with. The government has
had a number of discussions with European Commission officials about the
directive. Although the directive refers to limitations on transfers of
personal information to countries that do not have `adequate levels of
policy protection', it is unclear what the precise, practical impact of
the directive will be. The commission is at this stage still developing an
approach to assessing adequacy.
It should be noted that the EU directive contains a number of exceptions
which will allow transfers of data to non-EU countries in certain
circumstances, even if they are not considered to have adequate levels of
privacy protection. In addition, an EU member country may authorise a
transfer or set of transfers of personal information to a non-EU country
that does not have an adequate level of privacy protection where there are
adequate privacy safeguards in place under appropriate contractual
clauses.
The government believes that the national principles on fair handling of
personal information which were released by the Privacy Commissioner on 20
February provide a good basis for Australian businesses which handle
personal information to develop practices to ensure that the privacy of
individuals is protected. The government is discussing the Privacy
Commissioner's principles with EU officials in the course of its
discussions about the EU directive. The government will of course continue
to monitor the directive both domestically and internationally.
It has been suggested by the member for Banks that the bill sets up a
regime inconsistent with the principles laid down by the High Court in its
decision in the Brandy case. This is incorrect and, regrettably,
demonstrates a lack of understanding on the part of the member for Banks
of the Brandy decision and of the mechanisms which would apply under this
bill. The impact of the Brandy decision has been taken into account in the
construction of the determination and enforcement regime.
The opposition has also suggested that the privacy of unemployed persons
is not respected by the government. I draw it to the attention of the
opposition--and in particular the member for Batman--that this bill will
apply to providers contracted by the Department of Employment, Education,
Training and Youth Affairs under the new employment services market.
The member for Banks may in fact recall that it was a committee of which
he was the chairman and I was a member when the ESRA scheme was introduced
which saw that privacy principles were respected and the legislation was
improved by the committee's determination. Unlike the then government,
this government has already taken those principles into account.
Since 1 January 1989 when it came into operation, the Privacy Act has
required government agencies that hold information about individuals to
deal with that information in accordance with a specific set of private
standards. It has also provided a specific regime for dealing with
breaches of those standards and monitoring compliance generally. The
government is committed to ensuring that where its agencies contract for
the delivery of services those same specific standards and that same
compliance regime continue to apply. That is the purpose of the amendments
proposed in the bill: to preserve the same protection that the personal
information had when the government performed the service. The act will
apply only to those organisations who choose to contract with government
to provide services to government. This is very different from imposing
privacy legislation on the private sector as a whole.
The question of privacy laws for the private sector generally is a
separate issue which should not be used by the opposition to delay passage
of the Privacy Amendment Bill. The government knows that individual
Australians want the parliament to deal with this legislation
expeditiously, and the government expects the opposition to stop playing
obstructive games with this important legislation.
One matter I do want to mention specifically is the one raised at the end
of his speech by the member for Bonython--the subject of encryption, or
cryptography. The government is aware of and is acting in relation to
cryptography. There has been established for some time a committee of the
OECD in which Australia participates. In fact, a senior officer of my
department chairs the committee. It has developed some principles which
ensure the meeting of different objectives while using encryption.
The member for Bonython expressly mentioned law enforcement. You could add
to that security and intelligence. One of the principles expressly deals
with that subject. The government has adopted as broad policy objectives
the achievement of the principles determined by the OECD as a result of
the work of the committee on which the deputy secretary of my department
participates. So the member for Bonython can rest assured that the
government is well aware of the issue and is acting on it.
I repeat that the government will oppose the second reading amendment
moved by the member for Banks and supports the bill as is.
Question put: That the words proposed to be omitted (Mr Melham's
amendment) stand part of the question.
The House divided.[12.57 p.m.] (Mr Deputy Speaker--Mr K.J. Andrews)
Ayes 74 Noes 39
----
Majority 35
----
AYES
Abbott, A. J. Anderson, J. D.
Andrew, J. N. Anthony, L. J.
Bailey, F. E. Barresi, P. A.
Bartlett, K. J. Billson, B. F.
Bradford, J. W. Broadbent, R. E.
Brough, M. T. Cadman, A. G.
Cameron, E. H. Cameron, R. A.
Causley, I. R. Charles, R. E.
Cobb, M. R. Downer, A. J. G.
Draper, P. Elson, K. S.
Entsch, W. G. Evans, R. D. C.
Forrest, J. A. Gallus, C. A.
Gambaro, T. Gash, J.
Georgiou, P. Grace, E. J.
Hardgrave, G. D. Hawker, D. P. M.
Hicks, N. J.* Hockey, J. B.
Jeanes, S. B. Johnston, R.
Jull, D. F. Katter, R. C.
Kelly, D. M. Kemp, D. A.
Lindsay, P. J. Lloyd, J. E.
Marek, P. McArthur, F. S.*
McDougall, G. R. McGauran, P. J.
McLachlan, I. M. Miles, C. G.
Moore, J. C. Moylan, J. E.
Mutch, S. B. Nairn, G. R.
Nehl, G. B. Neville, P. C.
Nugent, P. E. Prosser, G. D.
Pyne, C. M. Randall, D. J.
Reid, N. B. Reith, P. K.
Ronaldson, M. J. C. Ruddock, P. M.
Scott, B. C. Sharp, J. R.
Slipper, P. N.* Smith, A. C.
Somlyay, A. M. Southcott, A. J.
Sullivan, K. J. Taylor, W. L.
Thomson, A. P. Truss, W. E.
Tuckey, C. W. Wakelin, B. H.
West, A. G. Williams, D. R.
NOES
Albanese, A. Beddall, D. P.
Bevis, A. R. Brown, R. J.
Crean, S. F. Crosio, J. A.
NOES
Dargavel, S. J. Ellis, A. L.
Evans, G. J. Evans, M. J.
Ferguson, L. D. T. Ferguson, M. J.
Filing, P. A. Fitzgibbon, J. A.
Grace, E. L.* Griffin, A. P.*
Hatton, M. Hollis, C.
Jenkins, H. A. Lawrence, C. M.
Lee, M. J. Macklin, J. L.
McClelland, R. B. McLeay, L. B.
Melham, D. Morris, A. A.
Morris, P. F. Mossfield, F. W.
O'Connor, G. M. O'Keefe, N. P.
Price, L. R. Quick, H. V.
Sawford, R. W.* Sercombe, R. C. G.
Theophanous, A. C. Thomson, K. J.
Willis, R. Wilton, G. S.
Zammit, P. J.
PAIRS
Bishop, B. K. Smith, S. F.
Fischer, T. A. Brereton, L. J.
Howard, J. W. Beazley, K. C.
Smith, W. L. Martin, S. P.
Wooldridge, M. R. L. Tanner, L. J.
* denotes teller
Question so resolved in the affirmative.
Original question resolved in the affirmative.
Bill read a second time.
-o-
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Received on Thu Aug 20 16:26:26 1998