Daryl Melham (Banks, Australian Labor Party) Share this | Hansard source

In the second reading speech to the Communications Legislation Amendment (Information Sharing and Datacasting) Bill 2007, the minister stated the following:

At present, the circumstances in which ACMA—

the Australian Communications and Media Authority—

can legitimately pass on information are uncertain. The amendments in this bill will provide ACMA with an appropriate level of certainty and in so doing, will enhance the efficiency of the regulator’s enforcement activities.

That is the crux of the bill as I understand it. The opposition have moved an amendment, part of which I want to quote, as it concerns me:

That all words after “That” be omitted with a view to substituting the following words:“whilst not declining to give the bill a second reading, the House:

(1)

is concerned that the bill does not:

(b)

address privacy concerns or provide adequate protection of confidential information ...

That is the concern that I have with the bill. Page 11 of the explanatory memorandum reads:

Item 3 of Part 1 of Schedule 1 to the Bill would insert a new Part 7A (‘Disclosure of Information’) into the ACMA Act. The new Part 7A would provide for the disclosure to particular parties, by ACMA officials, of authorised disclosure information.

Over the page, on page 12, it says:

It is important to note that, to the extent that information to be disclosed under proposed new Part 7A includes “personal information” as defined in section 6 of the Privacy Act 1988, the provisions of that Act will apply. In particular, it is not intended that the disclosure provisions included in proposed new Part 7A should override the Information Privacy Principles contained in section 14 of the Privacy Act 1988.

It is my hope that that illustration in the explanatory memorandum is in fact a reality, because I think the Privacy Act 1988 needs to be observed in relation to as many matters as possible.

The Senate Standing Committee on Environment, Communications, Information Technology and the Arts had an inquiry into this bill, a report of which was tabled in August 2007. Unfortunately, a minority report was released which details some procedural failings of the inquiry.

It is a matter of concern to some of us that the government in a lot of these reports seem to ram through their chair’s report and give little time for the minority members on the committee to have an adequate consideration of the chair’s report or to provide adequate statements. I do not propose to reiterate what the minority members have said in the report. It is all right for a government to have the majority in the House of Representatives, and probably in the Senate if it does the right thing, because legislation is not going to get overturned. But you have to start to worry when they ram stuff through and do not allow proper scrutiny. That is bad government, and eventually it comes back to bite them on the backside. It is a situation where, time and again, we in this place have seen the arrogance of the government in not allowing that scrutiny, and I think that is why the government are in trouble. I think people have stopped listening; they have had enough. The government’s actions are exposing their deficiencies. I suppose it is fair to say that both sides can be guilty of arrogance. Since 1949 you cannot point to a period where the Labor Party have had control of the Senate. We are always going to have a house of review. But this government no longer have a house of review; they have a rubber stamp for a Senate. The report on the bill shows that.

Submissions concentrated on two key issues in relation to the bill. One was the privacy provisions of the bill, which do authorise ACMA to disclose authorised disclosure information to ministers and their staff, various state and federal government agencies, Australian and overseas media, and the communications regulators. The minorities say that the bill does not adequately address privacy concerns or provide adequate protection of confidential information. Submitters to the Senate committee included the Office of the Privacy Commissioner, whose submission was dated July 2007. The key recommendations of the Office of the Privacy Commissioner, on page 4, were:

The Office submits that privacy protections should be balanced against investigation and enforcement activities. Further, we suggest that encouraging exempt agencies and bodies to implement standards for the handling of personal information will support better decision-making through improved data quality.

With these issues in mind, the Office makes the following recommendations:

1. The Office submits that the reference to the definition of personal information and compliance with the Privacy Act should appear within the Bill;

2. In terms of authorised disclosure information, the Office suggests that:

• consideration be given to expressly excluding personal information from being authorised disclosure information; or
• amending the Bill to require jurisdictions to be assessed as having substantially similar principles for fair handling of the information to the IPPs; or be made subject to an agreement under s59H which includes equivalent privacy obligations to the IPPs;

3. The regulation making powers under clause s59H should expressly provide for the privacy of individuals to be a matter of consideration for the Chair of ACMA and the process include consultation with the Privacy Commissioner; and

4. Further consideration be given to excluding personal information from the operation of clause 59F.

There was also a submission from the Victorian Privacy Commissioner. The final paragraph of Helen Versey’s letter to the committee says:

As noted above, the Explanatory Memorandum states that it is the legislature’s intention for the provisions of the Privacy Act 1988 to apply to personal information that is also authorised disclosure information. To prevent any ambiguity in interpretation of this bill, I recommend the insertion of the provision stating that it is the intention for the Privacy Act 1988 to apply.

That is what the government says it intends. I think it is important to put in the words that fulfil the intent of what the government wants to do. That way nobody is in any doubt. For people who read the bill and for people who are required to adjudicate in relation to the bill, it is there in black and white. My concern at times is that too often this government says something that is not matched by action or by the words in its bills. The bills in relation to the Northern Territory intervention talked about the legislation being a special measure, but in the next breath the bills basically excluded operation of the Racial Discrimination Act. You cannot have your cake and eat it too. There is a glaring inconsistency; the explanatory memorandum’s provisions are not matched with clauses within the legislation.

I raise that as an issue about which there is obviously concern from an opposition point of view. I would have thought that it would be a matter that would be easily remedied by the government just picking up and inserting a clause in the legislation to follow its expressed intent in the explanatory memorandum. With that qualification, I do commend the bill to the House.

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