Penny Wong (SA, Australian Labor Party, Minister for Finance and Deregulation) Share this | Hansard source

I present two government responses to committee reports as listed on today’s Order of Business. In accordance with the usual practice, I seek leave to incorporate the documents in Hansard.

Leave granted.

The list read as follows—

Environment and Communications References Committee––The adequacy of protections for the privacy of Australians online (report presented out of sitting on 7 April 2011 and tabled on 10 May 2011)

Joint Select Committee on Australia's Immigration Detention Network (final report was presented out of sitting on 30 March 2012 and tabled on 10 May 2012)

The documents read as follows—

Australian Government Response

Senate Environment and Communications Reference Committee Report: The adequacy of protections for the privacy of Australians online

Recommendation 1

2.31 The committee recommends that the government consider and respond to the recommendations in the Cyberspace Law and Policy Centre's report: Communications privacy complaints: In search of the right path, and recommendations from the Australian Communications Consumer Action Network arising from that report.

Government Response

Noted. The report raises a number of relevant issues, with comments on the issues set out below: -

Communications privacy complaints: In search of the right path – Recommendations

(1) There must be a significant improvement in time taken to resolve complaints at the OPC. The have significant resources, skills and expertise in privacy protections, and they only receive a tiny fraction of complaints in the sector. The OPC should aim to resolve the majority of complaints within 30 days.

The Office of the Australian Information Commissioner (OAIC) receives a very small proportion of complaints about telecommunications but those that they do receives are usually complex. They involve issues such as the listing of debts with credit reporting agencies. The nature of such complaints makes them difficult to resolve quickly. Given this complexity, the OAIC has a current benchmark for finalising investigations of 150 days on average.

(2) There must be a significant improvement in the information provided to individuals about resolution times. Information should be consistent (across the website, annual reports and verbal advice). It should be frank – e.g. exact timing targets, or an exact average based on prior complaints. It is very poor practice to accept a complaint without warning the consumer that it may take 6 months to resolve, especially when other avenues for resolution are available.

The information should be consistent and based on average times and the OAIC will look to improve the information it currently provides to complainants.

(3) All three complaint bodies (i.e. Australian Communications and Media Authority [ACMA], the Telecommunications Industry Ombudsman [TIO] and the OAIC) should undertake research to assess the demographic profiles of their complaints, to gain better understanding of special needs such as language and disability access. This research will also identify whether some disadvantaged groups are not utilising the services of these complaints bodies, and this information could be used to design outreach and targeting programs.

The TIO has advised that it has developed a disadvantaged and vulnerable communications strategy, which identifies some targeted activities to research the needs of, and raise awareness of the TIO among, vulnerable groups in the community. These include culturally and linguistically diverse (CALD) consumers, consumers in rural and regional areas, people with disabilities, indigenous consumers and young people.

The OAIC and the ACMA will look at the resource implications of undertaking such research.

(4) There should be better coordination amongst the three complaints bodies, with the aim of reducing the adverse consequences for consumers of the current disconnection. A formal Memorandum of Understanding should be developed between the three complaint bodies. This agreement should include fair and transparent criteria for the management of complaints and for referrals between the three organisations. A process for sharing the identity of business parties to a complaint should be developed in order to enhance the recognition of systemic issues across the sector.

This recommendation is consistent with recommendation 73-8 from the Australian Law Reform Commission's (ALRC) Report 108 – For Your Information: Australian Privacy Law and Practices, which calls for the development of memoranda of understanding between the complaint handling bodies and clarity around the roles and responsibilities of each complaint handling organisation.

The ACMA has advised that a memorandum of understanding (MoU) has already been established between the ACMA and the TIO.

The OAIC has advised that it will explore developing a Memorandum of Understanding involving the three relevant complaints bodies.

(5) Consumers should be provided with consistent information about where they should complain. This should include information on jurisdiction issues, but also on timelines and expected outcomes where these differ between the three complaints paths. It should be widely accessible and available to consumers contemplating or initiating complaints.

This recommendation is consistent with recommendation 73-9 from the Australian Law Reform Commission's (ALRC) Report 108 – For Your Information: Australian Privacy Law and Practices, calling for the OAIC to publish its complaint handling policies, procedures and enforcement guidelines, including the roles and functions of the complaints handling bodies under their relevant legislation.

The Department of Broadband, Communications and the Digital Economy, (DBCDE) has reviewed the role of the TIO and has recommended that the TIO clarify its jurisdiction over emerging products and services and publish information to establish clear boundaries around the issues, including complaints, that are within or outside its jurisdiction (see http://www.dbcde.gov.au/consultation and submissions/TIO reforms).

The OAIC's website offers a 'complaint checker' tool that assists potential complainants to identify the appropriate jurisdiction and to understand the complaint process and possible outcomes. The OAIC will consider whether the information provided to complainants can be enhanced to provide additional information, consistent with this recommendation.

(6) Industry should be provided with consistent information about compliance. There should be no circumstances where the industry is receiving a message from one complaints body that everything is fine, while another complaints body is issuing warnings or enforcement action for non-compliance. Again this should be widely accessible and available for relevant industry personnel.

This could be one of the matters to be included in a MoU between the three bodies – see recommendations 4 and 5 above.

(7) All three complaint bodies must ensure that they offer (and use) the full range of regulatory tools and remedies. These include:-

1. Compensation for the individual;

2. An apology for the individual;

3. Prompt correction or removal of personal data;

4. A change to business practice at the individual company;

5. A change to broader industry practice for systemic issues;

6. Occasional naming of individual companies as a warning to inform other consumers, and a lesson for industry that reputation consequences may arise from poor complaint outcomes; and

7. Occasional enforcement action in order to promote compliance.

In practice this recommendation will necessitate a change of approach at the OPC, so that they utilise their naming and enforcement powers, and a change of approach at the ACMA so that they offer greater individual remedies (such as compensation and apologies).

ACMA's recent Reconnecting the Customer inquiry and the DBCDE's review of the TIO may lead to regulatory change to improve industry behaviour and the end-user experience when seeking redress.

Currently, the OAIC employs a range of regulatory tools in the conduct of complaint handling activities. The Commissioner is able to seek each of the remedial actions listed above. The OAIC regularly seeks remedies 1 to 6, including the naming of respondents in reports of 'own motion' investigations and in the OAIC's annual report. Under the Privacy Act 1988 (the Act) "enforcement action" would necessitate commencing action in the Federal Court to enforce a determination made under section 52 of the Act. The Commissioner also has a power to seek an injunction through the Federal Court to stop a person from engaging in conduct that would constitute a contravention of the Act.

The ALRC recommended and the Government agreed that the OAIC be granted with additional and improved powers to protect consumers in relation to privacy. The Privacy Amendment (Enhancing Privacy Protection) Bill 2012 includes amendments to strengthen the Information Commissioner's powers to conduct investigations, resolve complaints and promote compliance. These amendments will contribute to more effective and stronger protection of the right to privacy.

Recommendation 2

3.30 The committee recommends that the Australian Privacy Commissioner's complaint-handling role under paragraph 27(1) (ab) of the Privacy Act be expanded to more effectively address complaints about the misuse of privacy consent forms in the online context.

3.31 The committee further recommends that the Office of the Privacy Commissioner examine the issue of consent in the online context and develop guidelines on the appropriate use of privacy consent forms for online services.

Government Response

3.30 Noted. The ALRC recommended and the Government agreed that the OAIC be granted additional and improved powers to protect consumers in relation to privacy. The Privacy Amendment (Enhancing Privacy Protection) Bill 2012 includes amendments to strengthen the Information Commissioner's powers to conduct investigations, resolve complaints and promote compliance. These amendments will contribute to more effective and stronger protection of the right to privacy.

3.31 Agreed in principle. Implementation is a matter for the OAIC, taking account of available resources and priorities.

Recommendation 3

3.50 The committee recommends that the small business exemptions should be amended to ensure that small businesses which hold substantial quantities of personal information, or which transfer personal information offshore are subject to the requirements of the Privacy Act 1988.

3.51 To achieve this end, the committee urges the Australian Privacy Commissioner to undertake a review of those categories of small business with significant personal data holdings, and to make recommendations to government about expanding the categories of small business operators prescribed in regulations as subject to the Privacy Act 1988.

3.52 The committee further recommends that the second tranche of reforms to the Privacy Act 1988 amend the Act to provide that all Australian organisations which transfer personal information overseas, including small businesses, must ensure that the information will be protected in a manner at least equivalent to the protections provided under Australia's privacy framework.

Government Responses

3.50 Noted. The Australian Law Reform Commission Report (ALRC) 108, For Your Information: Australian Privacy Law and Practice recommended (R39-1) that the Act be amended to remove the small business exemption.

The Government will take the recommendation into account when it considering the ALRC's recommendation to remove the small business exemption.

3.51 Noted. The Government will consider this recommendation in conjunction with its deliberations on recommendation 3.50 above.

3.52 Noted. The Government will consider this recommendation in conjunction with its deliberations on recommendations 3.50 and 3.51 above.

The Privacy Amendment (Enhancing Privacy Protection) Bill 2012 creates the Australian Privacy Principles, a single set of privacy principles applying to both Commonwealth agencies and private sector organisations. Australian Privacy Principle (APP) 8 and new section 16C will provide a framework for the regulation of cross-border disclosures of personal information. Before a cross-border disclosure can occur, the draft APP 8 imposes minimum obligations on an organisation to take such steps as are reasonable in the circumstances (for example, by imposing contractual obligations) to ensure that the overseas recipient does not breach the draft APPs.

In addition, an organisation will remain accountable for the acts and practices of the overseas recipient, unless an exemption applies.

Recommendation 4

3.86 The Committee recommends that the OPC in consultation with web browser developers, ISPs and the advertising industry, should, in accordance with proposed amendments to the Privacy Act, develop and impose a code which includes a 'Do Not Track' model following consultation with stakeholders.

Government Response

Noted. As part of its stage one response to the ALRC recommendations, the Government announced that it supports the development of binding and mandatory codes. Schedule 3 of the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 contains the new provisions on privacy codes. It will be a matter for the Commissioner to consider whether a code is necessary.

Recommendation 5

3.96 The committee recommends that item 19(3) (g)(ii) of the exposure draft of amendments to the Privacy Act 1988 be amended to provide that an organisation has an Australian link if it collects information from Australia, thereby ensuring that information collected from Australia in the online context is protected by the Privacy Act 1988.

Government Response

Noted. The Privacy Amendment (Enhancing Privacy Protection) Bill 2012 inserts the term 'Australian link' and lists additional connections with Australia which would be a sufficient link, see items 2-8 of Schedule 4 of the Bill.

Recommendation 6

3.109 The committee recommends that the government amend the Privacy Act 1988 to require all Australian organisations that transfer personal information offshore are fully accountable for protecting the privacy of that information.

3.110 The committee further recommends that the government consider the enforceability of these provisions and, if necessary, strengthen the powers of the Australian Privacy Commissioner to enforce offshore data transfer provisions.

Government Response

Noted. See response to recommendation 3.52.

Recommendation 7

3.116 The committee recommends that the Australian government continue to work internationally, and particularly within our region, to develop strong privacy protections for Australians in the online context.

Government Response

Accepted. The Australian Government has been and will be continuing to work with appropriate international bodies including in particular regional bodies to further privacy protections.

The Government actively participates in the work of the Organisation for Economic Cooperation and Development (OECD) and Asian Pacific Economic Council (APEC) on international privacy issues. Australia has played a leading role in the development of the APEC Cross-Border Enforcement Arrangement (CPEA), which allows participating privacy regulators to share information and provide assistance in relation to privacy matters that have a cross-border aspect. The APEC CPEA commenced in July 2010 and the privacy regulators of Australia, Canada, New Zealand, Hong Kong China, and the United States are currently participants.

The OAIC continues to foster strong ties with other privacy authorities in the region via the Asia Pacific Privacy Authorities group.

Recommendation 8

3.122 The committee recommends that the government accept the ALRC's recommendation to legislate a cause of action for serious invasion of privacy.

Government Response

Noted. In July 2011, following publication of the Committee's report, the Government announced that it will bring forward consideration of those Australian Law Reform Commission (ALRC) Report 108, For Your Information: Australian Privacy Law and Practice, recommendations which relate to a statutory cause of action for serious invasion of privacy (chapter 74 of the ALRC Report). In September 2011, the Minister for Privacy and Freedom of Information Policy, the Hon Brendan O'Connor, MP, released an issues paper as part of a community consultation to inform the Government's consideration of whether a cause of action should be legislated and, if so, how the elements of such a cause of action should be structured. The paper considers the ALRC's recommendations, relevant recommendations made by the New South Wales and Victorian law reform commissions, the current policy context and the legal position in Australian and other jurisdictions.

The Government will consider submissions received as part of the consultation process before determining whether to legislate for a Commonwealth cause of action and, if so, how legislation for such a cause of action should be drafted.

The Government will take the Committee's Recommendation 8 into account in making this determination.

Recommendation 9

4.74 The committee recommends that before pursuing any mandatory data retention proposal, the government must:

Government Response

Agreed in principle. .The Government is committed to an open, transparent and consultative approach and acknowledges the public's interest in these issues.

The Parliamentary Joint Committee on Intelligence and Security is considering a range of measures that will allow law enforcement and intelligence agencies to meet the challenges of rapidly changing technology and the global security environment – including data retention.

The Government has not made a decision about whether or not Australia should have a data retention regime and the Government will consider the Committee's views before making any decisions.

Any proposal must strike an appropriate balance between community expectations regarding individual privacy and the investigation and prosecution of unlawful behaviour, as well as the provision of competitive commercial telecommunications services.

Government Response to Recommendations by the Joint Select Committee on Australia's Immigration Detention Network.

November 2012

Preamble

The Australian Government welcomes the opportunity to respond to the report of the Joint Select Committee on Australia's Immigration Detention Network. The report was presented on 30 March 2012.

The Government has accepted (fully, in principle or partially) 26 of the 31 majority report recommendations made by the Committee. The Australian Government has progressed many of the recommendations. These include:

Since the release of the Committee's report a number of significant policy and legislative reforms related to Irregular Maritime Arrivals (IMAs) have taken place. On 28 June 2012, the Prime Minister announced the establishment of an independent expert panel to examine approaches to deterring asylum seekers from embarking on dangerous boat journeys to Australia. The Expert Panel on Asylum Seekers was led by Air Chief Marshal Angus Houston AC AFC (Ret'd), who was joined by Paris Aristotle AM and Professor Michael L'Estrange AO.

The Expert Panel made 22 recommendations, including measures to implement regional processing to safeguard Australian borders, avert loss of life at sea and offer consistency in affording protection to those in need. The Government endorsed, in principle, all 22 recommendations of the Expert Panel's report.

The Australian Government believes in strong policies and decisive action to prevent loss of life through dangerous irregular maritime passages and ensuring there is no advantage for those who seek to arrive in Australia by such means. The Government has simultaneously increased the opportunities for offshore resettlement in Australia by increasing the Humanitarian Program to a total of 20,000 places each year, making Australia the second highest humanitarian intake country in the world.

The Joint Select Committee on Australia's Immigration Detention Network conducted its inquiry and reported prior to these significant policy changes. As such, references to IMAs contained within the Committee's report, its recommendations and the Government's response pertain to IMAs who arrived in Australia prior to 13 August 2012.

The Government is grateful for the work the Committee has undertaken in respect to this important issue and for all those who contributed with their submissions and evidence to the Committee.

The Government's response to the recommendations made by the Committee follows.

Table 1 – Summary of Government Response to Recommendations

RESPONSE TO MAJORITY REPORT RECOMMENDATIONS

DIAC's contract with Serco

Recommendation 5

The Committee recommends that the Department of Immigration and Citizenship appoint an independent expert to inquire into the appropriate qualifications for Serco Client Service Officers and make appropriate amendments to its contract with Serco.

Accepted

The Government considers that appropriate training and qualification of the Detention Service Provider (Serco) staff is fundamental to the delivery of appropriate services to people in detention.

The Department of Immigration and Citizenship (DIAC) and Serco are currently consulting about the ongoing roles and responsibilities of Serco Client Services Officers in the immigration detention network . Once this consultation is finalised an independent expert will be appointed to inquire into the appropriate qualifications for Serco Client Service Officers.

Recommendation 9

The Committee recommends that Serco develop and implement improved proactive procedures to support staff following critical incidents.

Accepted

The Government considers that appropriate staff support is fundamental to the efficient delivery of effective services to people in detention by the Detention Service Provider (Serco).

The Department of Immigration and Citizenship (DIAC) has recommended that Serco develop and implement improved proactive procedures within its current Employee Assistance Program (EAP) to support staff following critical incidents.

Enhanced mental health awareness and mental health policy training (including Psychological Support Program) is also currently being delivered by DIAC and International Health and Medical Services across the detention network to Serco staff . As of 1 September 2012 approximately 975 Serco staff had attended the training.

Provision of health services to people in detention

Recommendation 6

The Committee recommends that the Department of Immigration and Citizenship effectively contract manage Serco ' s implementation of the Psychological Support Program Policy.

Accepted

See response to Recommendation 7 below.

Recommendation 7

The Committee recommends that the Department of Immigration and Citizenship work with Serco and the Detention Health Advisory Group to reform the Keep Safe policy to ensure it is fully consistent with the Psychological Support Program Policy, as soon as possible.

Accepted

The Government has a comprehensive health framework and service delivery strategy for people in immigration detention . The provision of health services, in particular mental health services, is subject to regular review and improvement.

The Psychological Support Program policy (PSP policy) for the prevention of self-harm in immigration detention was developed by the Department of Immigration and Citizenship (DIAC) in consultation with the Detention Health Advisory Group (DeHAG).

DIAC, its Detention Service Provider (Serco), and Detention Health Service Provider, International Health and Medical Services, (IHMS) have aligned all policies and procedures related to the implementation of the PSP policy and Serco ' s " Keep Safe Procedure " (Keep Safe).

DIAC consulted DeHAG in revising the Serco Keep Safe policy and their feedback was incorporated . The revised policies and procedures were rolled-out across the immigration detention network at the end of July 2012.

In addition, DIAC commissioned the IPSOS Social Research Institute to undertake an evaluation of the implementation of the PSP . The final report was delivered to DIAC in August 2012.

Recommendation 8

The Committee recommends that the Department of Immigration and Citizenship ensure that Serco provides adequate Detention Health Advisory Group –endorsed mental health training to Serco officers who implement the Psychological Support Program Policy.

Accepted

All Detention Service Provider services staff are required to undertake mental health awareness training as part of their induction training and at least every two years thereafter.

A joint International Health and Medical Services (IHMS) and Department of Immigration and Citizenship (DIAC) team is delivering mental health awareness and mental health policy training (including Psychological Support Program) across the detention network to staff from Serco, IHMS and DIAC. This training is endorsed by the Detention Health Advisory Group. As of 1 September 2012 approximately 975 Serco staff had attended the training.

Recommendation 10

The Committee recommends that the Department of Immigration and Citizenship ensure Serco has appropriate procedures and training in place so that only where International Health and Medical Services personnel are not available can senior Serco managers participate in the secondary dispensing of medication.

Accepted

The Detention Service Provider (Serco) has a procedure in place entitled Secondary Dispensing of Medication that sets out its contractual requirement and safe practice guidelines to assist in the administration of medications to clients when there are no Detention Health Service Provider, International Health and Medical Services (IHMS), personnel on site.

In addition the Department of Immigration and Citizenship (DIAC) is progressing a review of medication management in immigration detention facilities . This review will be undertaken by a suitably qualified and experienced organisation . The recommendations of the review will be used to inform DIAC in future policy and procedural development, and contractual management in matters relating to medication management, including secondary dispensing of medication.

Recommendation 14

The Committee recommends that International Health and Medical Services staff be rostered on a 24 hour a day basis at all non-metropolitan detention facilities.

Not Accepted

All people in immigration detention are provided access to health care at a standard generally comparable to the health care available to the Australian community and consistent with the duty of care owed to people in immigration detention . Health care services are provided by qualified health professionals and take into account the diverse and potentially complex health care needs of people in immigration detention.

The Department of Immigration and Citizenship (DIAC) acknowledges that it is appropriate to provide 24 hour onsite medical staffing at certain non-metropolitan detention facilities .

At present the Detention Health Service Provider, International Health and Medical Services, (IHMS) provides onsite services 24 hours a day at Christmas Island, Curtin, Scherger, Wickham Point and Yongah Hill Immigration Detention Centres .

DIAC is considering, on a case by case basis, whether it is appropriate to provide 24 hour medical staffing at other non-metropolitan facilities . Factors that are part of the consideration process include the availability and proximity of external medical services including hospitals.

Recommendation 15

The Committee recommends that the Department of Immigration and Citizenship assess, on a case by case basis, the need for International Health and Medical Services staff to be rostered on a 24 hour a day basis at metropolitan detention facilities.

Accepted

The Department of Immigration and Citizenship is assessing, on a case by case basis, the need for 24 hour a day medical staffing at metropolitan detention facilities . Factors that are part of the consideration process include the availability and proximity of external medical services including hospitals.

Recommendation 16

The Committee recommends that the Department of Immigration and Citizenship work with International Health and Medical Services to pilot regular mental health outreach services in detention facilities.

Accepted in Principle

Mental health care and support services for people in immigration detention are provided by general practitioners, mental health nurses, psychologists, counsellors and psychiatrists. This care is provided or co-ordinated by the Detention Health Services Provider, International Health and Medical Services (IHMS).

Since the implementation of the Bridging visa program enabling Irregular Maritime Arrivals who meet identity, health, character and security requirements to live in the community while their claims for protection are being processed, the self-harm rates for the population in detention have significantly reduced.

The Department of Immigration and Citizenship will consult with its service providers