Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I table a supplementary explanatory memorandum relating to the government’s amendments to be moved to this bill. The memorandum was circulated in the chamber on 16 October 2006. I move government amendment (1) on sheet PJ334:

(1)    Schedule 1, item 1, page 4 (line 10), after “that”, insert “directly”.

This is the first of two government amendments, which I alluded to previously. This first amendment will change the definition in the bill of ‘permitted purpose’ so that it is a purpose that directly relates to the Commonwealth’s response to the emergency or disaster in respect of which an emergency declaration is in force. This comes from a recommendation of the Senate Standing Committee on Legal and Constitutional Affairs. The definition of ‘permitted purpose’ specifies the circumstances in which Australian government agencies and certain private sector and charitable organisations may collect, use and disclose personal information when an emergency or disaster has been declared, in accordance with the provisions proposed to be inserted in the Privacy Act 1988 by this bill.

I mentioned the Senate committee recommendation. That committee found that the original definition of ‘permitted purpose’ was unnecessarily broad, which is why it is being limited to a purpose that directly relates to the government’s response. I believe that this accommodates that recommendation and I commend it to the committee.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I know the minister dealt with part of the issue during his contribution to the second reading debate, but I want to raise the issue again. I know you would not do this, Minister, but during the process there was an opportunity for the Attorney-General to consult with the shadow Attorney-General about these matters, and I would encourage them to do that. It certainly makes all our lives a little easier if that happens. If it was the case that it was overlooked or rushed, then perhaps an explanation to the shadow Attorney-General might be in order.

In terms of content, they will deal with it in the House. It seems to go to the issue raised in the committee report. But even on that point, it may underpin that—it does in fact raise the issue of the worth of committee reports to be able to raise these issues and have sufficient time to deal with the legislation and go through it. What we find, of course, is that, having gone through the legislation, we do come up with committee reports which assist the legislative process and, dare I say, improve legislation. It is good to see that the government has sought to pick up those two recommendations and put them in the bill.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I want to put on record the Democrats’ support for this amendment. I was remiss in my contribution on the second reading in not acknowledging the contribution and work of the Senate Standing Committee on Legal and Constitutional Affairs on this legislation. Whilst I added in some additional comments of my own to their report, I thought their report did a reasonably good job in the time available. The recommendation which this amendment goes to was a good one. The government’s amendment, whilst it might look fairly minor, does at least limit the circumstances in which an individual’s personal information is used to situations directly related to an emergency. It is a fairly important word being added, in that the permitted purpose for the use of these new provisions is a purpose that ‘directly’ relates to the Commonwealth’s response to an emergency or disaster in respect of which an emergency declaration is in force. That goes some way to at least limiting the potential for abuse. It is an example, yet again, of the importance of the Senate committee process and another opportunity to make the point about how harmful it is to the democratic and legislative process when the ability of Senate committees to do their job properly is constrained.

Question agreed to.

I seek leave to move Democrat amendments (1), (2) and (3) on sheet 5095 together.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Is leave granted?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

If you move (1), (2) and (3) together, doesn’t (1) conflict with the one that we just did?

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I am just going off the running sheet, sorry.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

Democrat amendment (1) conflicts with government amendment (1) on sheet PJ334. You might be better off just dealing with amendments (2) and (3). You just offered support for government amendment (1), which conflicts with your proposed amendment (1).

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I am happy to go with the chair’s ruling. I was going off the running sheet here, which suggested moving the three of them together. I am quite happy to move just (2) and (3) together.

The Temporary Chairman:

That would probably make more sense, Senator Bartlett, if you are happy to move (2) and (3) together.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

‘Happy’ might be overstating it a bit, but I am certainly prepared to.

The Temporary Chairman:

Thank you.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

by leave—I move Democrat amendments (2) and (3) on sheet 5095 together:

(2)    Schedule 1, item 1, page 4 (line 13 and 14), omit “Without limiting subsection (1), any of the following is a permitted purpose in relation to an emergency or disaster:”, substitute “A permitted purpose in relation to an emergency or disaster is limited to the following:”.

(3)    Schedule 1, item 1, page 4 (line 24 and 25), omit paragraph 80H(2)(c).

These amendments also go to the issue of permitted purposes and to some of the concerns that the definition of ‘permitted purpose’, as including the purpose that relates even directly to the Commonwealth’s response, is still potentially too broad. It opens up the potential for abuse of a person’s privacy by organisations and individuals that really only have a fairly tenuous connection to the disaster at hand.

The federal Office of the Privacy Commissioner, in their evidence, encouraged further tightening of the definition of ‘permitted purpose’. I think these amendments assist in enabling that to happen by specifically limiting the permitted purposes to what is detailed in the legislation. Currently the wording in proposed section 80H gives a list of ‘any of the following’ as a permitted purpose relating to an emergency or disaster, without limiting proposed subsection (1). I think that saying ‘without limiting’ does just that: it does not limit it sufficiently. Certainly the evidence from the Privacy Commissioner, as I understand it, would suggest that a bit more limiting might be desirable.

Amendment (3) omits proposed section 80H(2)(c), which includes a permitted purpose of assisting with law enforcement in relation to the emergency or disaster. This is in response to evidence given to the inquiry that suggested that this may also be too broad. The acting Victorian Privacy Commissioner commented that the bill relates to enforcing offences giving rise to the emergency or offences committed during the emergency and raised issues relating to who is doing the assisting with law enforcement. ‘Assisting’ could potentially allow any person or organisation not normally officially associated with law enforcement to be able to deal with the personal information.

We believe the law as it stands should remain subject to the current obligations and that there are already sufficient powers of investigation. The submission by the Attorney-General’s Department confirms that law enforcement agencies are already subject to privacy provisions. The Democrats do not believe there is a need to further expand that power or a need to have them included in this section. I also understand that the Australian Privacy Foundation argued that law enforcement and managing the disaster are not entirely consistent with helping individuals in the aftermath of the disaster—that is, the distinction between managing and dealing with a disaster with regard to chasing up information and law enforcement activities. There may seem to be an overlap, but I think there is also a distinction there.

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The government is opposed to these amendments on the basis that it still believes that the previous government amendment which was moved deals with this area and that the proposals put by the Democrats are overly restrictive. For those reasons, the government opposes these amendments.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I can indicate to the Democrats, notwithstanding correcting their running sheet, that the Labor Party does not support the amendments. I do understand the point you are making in respect of the misuse of personal information or the potential for misuse of personal information. I think, though, in the area of law enforcement it is unlikely to arise. But then you had the amendment which inserted ‘directly’, and I think that negates the concern. But I do understand the Democrats’ strong issues in this area, and I respect that although in this instance Labor will not be supporting these amendments.

Question negatived.

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I move government amendment (2) on sheet PJ334:

(2)    Schedule 1, item 1, page 6 (lines 15 to 22), omit section 80N, substitute:

80N When declarations cease to have effect

An emergency declaration ceases to have effect at the earliest of:

             (a)    if a time at which the declaration will cease to have effect is specified in the declaration—at that time; or

             (b)    the time at which the declaration is revoked; or

             (c)    the end of 12 months starting when the declaration is made.

Again, this is a result of the recommendations in the Senate Standing Committee on Legal and Constitutional Affairs report. The Senate committee was concerned that the bill would allow a declaration to specify an indefinite period of operation. This second proposed amendment by the government will adopt the committee’s recommendation so that an emergency declaration made under the provisions of the bill has a statutory maximum period of 12 months. The bill still permits an emergency declaration to specify a period of less than 12 months or be revoked before the expiry of 12 months. I think that having this time limit accommodates the recommendation made by the Senate committee and, indeed, addresses some of the Democrats’ concerns. Of course, they may have another view on that. But we prefer this approach—the 12-month period or less. I commend the amendment to the committee.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I will not reiterate the statements I made in respect of government amendment (1). They are apposite in respect of this amendment. I will not delay the proceedings any further. We will deal with them in the House when this bill comes up as well.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

This also links to two further Democrat amendments—amendments (4) and (6). The minister is right. This does address some of the Democrats’ concerns and does come again from the valuable work done by the Senate Standing Committee on Legal and Constitutional Affairs. It does not address all of them, which is why we still prefer the version that we have in our amendments. The effect of the government’s amendment is to put in place a 12-month time limit. We think that is fairly long and we prefer a one-month time limit, which we have in our amendment (6). We appreciate that is not going to get the support of a majority in this chamber.

We also think that there is merit in requiring a declaration to specify a cessation time in writing. It is currently open for that to be done, but it is not required. If we modify the privacy requirements, protections and laws in a particular circumstance, it would be useful for the people involved to have an idea up front of how long those variations or exemptions are going to operate for, rather than it just being for a period of time that could potentially be negated by a revoking of that legislation. If the time is not specified at the start of the declaration, there is a risk that people who are acting under the modified privacy protection regime will not have a clear understanding of when those changes are going to cease to have effect—unless it is the full 12 months; but the government could come in at any stage part way through those 12 months and revoke that under the provisions. Then you would have to make sure that everybody was aware at that stage that the revocation had occurred. There is more risk there of people perhaps inadvertently being unaware that the changed circumstances—the modified privacy requirements—were no longer applying. That is why we think that the approach of the Democrats is better. Having said that, clearly the government’s amendment is an advance on what is in the bill.

Question agreed to.

by leave—I move Democrat amendments (4) and (6) from sheet 5095 together:

(4)    Schedule 1, item 1, page 6 (lines 2 to 5), omit subsection 80L(1), substitute:

        (1)    An emergency declaration must:

             (a)    specify a cessation time; and

             (b)    be in writing and be signed by:

                   (i)    if the Prime Minister makes the declaration—the Prime Minister; or

                  (ii)    if the Minister makes the declaration—the Minister.

(6)    Schedule 1, item 1, page 6 (lines 15 to 22) omit section 80N, substitute:

80N When declarations cease to have effect

An emergency declaration ceases to have effect at the earlier of:

             (a)    the time of the cessation specified under paragraph 80L(1)(a); or

             (b)    the time at which the declaration is revoked; or

             (c)    the end of one month commencing when the declaration is made.

                   (i)    if the Prime Minister makes the declaration—the Prime Minister; or

                  (ii)    if the Minister makes the declaration—the Minister.

I basically just spoke to these amendments. Amendment (6) is more in conflict with what we just agreed to than amendment (4). Either way, clearly, the government prefers what it put forward. Because I love failing and being rejected so comprehensively and continually, I want another opportunity to lose!

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I can confirm Senator Bartlett’s view that he has not persuaded the opposition sufficiently for us to support his amendments. We took the lead from the committee report. It made two specific recommendations about this. We otherwise agreed with the content of the bill. The recommendations highlighted two issues that the bill was deficient in addressing. These further amendments that you have proposed have not had sufficient scrutiny. Therefore, on that basis we will not be supporting them. However, when you bring forward amendments (10) and (13), move those separately, because you have persuaded us—unless the government can dissuade us by their argument—that those might in fact deserve support. I do not want to encourage you to make more amendments, but there is an argument that the government needs to address here. Failing the government addressing it, we might offer our support if you move those separately.

Question negatived.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

by leave—I now move Democrat amendments (5) and (7) on sheet 5095 together:

(5)    Schedule 1, item 1, page 6 (line 11), omit “not”.

(7)    Schedule 1, item 1, page 6 (after line 22), after section 80N, insert:

80NA Extension of declaration

Any declaration made under section 80J or 80K may be extended to a specified cessation time.

These amendments deal with the disallowance and extension. The first one takes out the word ‘not’ so that an emergency declaration is a legislative instrument. Currently it is not. This is a protection against potential abuse, albeit a small one. Amendment (7) adds in an extra component so that any declaration made can be extended to a specified cessation time. That means that any extension would also be disallowable.

Question negatived.

by leave—I move Democrat amendments (8), (9), (11) and (12) from sheet 5095 together:

(8)    Schedule 1, item 1, page 6 (after line 28), at the end of subsection 80P(1), insert:

         ; and (f)   in the case of disclosure by one entity to another for the purpose of managing the emergency or disaster—the recipient is in a position to act on the information to manage the emergency or disaster.

(9)    Schedule 1, item 1, page 8 (after line 17), after paragraph 80P(7)(c), insert:

           (ca)    sections 19 and 19A of the Census and Statistics Act 1905;

(11)  Schedule 1, item 1, page 9 (lines 8 and 9), omit “or a National Privacy Principle”.

(12)  Schedule 1, item 1, page 9 (line 16), omit paragraph 80Q(2)(g).

If I understood Senator Ludwig’s earlier hints, he wants me to move amendments (10) and (13) separate from amendments (8), (9), (11) and (12). I foreshadow moving amendments (10) and (13) and will talk to them as well. These deal with issues of disclosure and destruction of documents. They are reasonably self-explanatory, but I will explain them anyway. These amendments insert a new requirement such that in the case of disclosure by one entity to another for the purpose of managing an emergency or disaster the recipient must be in a position to act on that information. That is an extra protection. It requires that the people who get the information be people who can actually do something related to the disaster with that information.

It also specifically inserts the relevant sections of the Census and Statistics Act into the designated secrecy provisions so that it is made clear that census data is added as data that maintains secrecy. That is probably a fairly minor point in one sense, but the Australian Bureau of Statistics did indicate concerns that without this protection the quality of census data could be affected because they rely very strongly on absolute legislative guarantees that people’s information when given in a census will not be used in any other way down the track. The ABS are very particular about always ensuring that, beyond any shadow of a doubt, census data will not be used for other purposes. So this amendment specifically responds to the concern that was expressed.

Amendment (10) seeks to put in a substitution to the existing clause 80Q(1)(b), which concerns a person committing an offence if they subsequently disclose personal information. This expands that somewhat to cover people who use the personal information for purposes unrelated to the emergency under the declaration or disclose that information. It tries to make it clear that, for people who get information, it still would be an offence for them to use it for purposes that clearly have nothing to do with the emergency at hand. We do not believe that that protection is provided for adequately in the bill.

Amendment (11) makes a slight amendment to ensure that disclosures are only allowed for permitted purposes. Amendment (12) removes the ability for disclosure by regulation. Amendment (13) deals with destruction of information. I am pleased to note that the Labor Party have indicated that this is an area that gives them concern also. As I understand it, it is linked to views that were raised during the Senate committee inquiry, so I presume it is not something totally out of the blue to the government. It relates to the destruction of information and, as stated in the wording, it requires that information obtained in response to an emergency declaration under these new provisions must be destroyed within one month of the declaration ceasing to have effect unless the person to whom the information relates consents to its retention. This is an attempt to deal with what I think was a legitimate question that was asked during the inquiry, which is what happens to information once the emergency or disaster has passed.

Existing national privacy principle 4.2 clearly states that an organisation must take reasonable steps to destroy or permanently de-identify personal information if it is no longer required for the purpose it was obtained for. The acting Victorian Privacy Commissioner recommended that this bill needed a mechanism to adequately deal with the ongoing handling of information when it no longer relates to the emergency at hand. So this amendment is aimed at ensuring that information is only divulged for the purpose of the emergency and that, if there is a need to retain information for a particular purpose well past the immediate time of the emergency, this should be the subject of a declaration to that effect. So it is very specific. Any further retention of information only occurs under specific instructions.

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

Briefly dealing with each amendment in turn, the government believes amendment (8) put forward by the Democrats is unnecessary. Information can only be collected, used or disclosed if it is for a permitted purpose, and the meaning of ‘permitted purpose’ in clause 80H covers the Commonwealth’s response to an emergency or disaster. We think that covers it.

We believe amendment (11) would undermine the Privacy Act. It would prevent an organisation providing information that it is already legally entitled to provide under the Privacy Act. In essence, an organisation would find itself in breach of the Privacy Act simply because an emergency declaration is in effect. The government cannot support this amendment, nor can it support amendment (9).

However, having said that, the government do understand the purpose of amendment (9)—it is important that ABS secrecy provisions receive appropriate protection. It is important to note that the bill only enables disclosure; it does not require it. The ABS will never be compelled to reveal personal information. The government, however, intend to designate the ABS secrecy provision in the regulations and we undertake to do so. The ABS secrecy provision will be dealt with in regulations—we do not believe it should be dealt with in the act—and we give an undertaking to do that. The secrecy provisions that are included as exempt in the bill are significant because they affect agencies that are completely exempt or partially exempt from the Privacy Act. If they were not exempt in the bill, there may be subsequent questions as to the impact of the Privacy Act on those agencies.

The final Democrat amendment that we are dealing with here is (12). We believe a regulation-making power is necessary. We need to ensure flexibility so that disclosures that are not covered by subclause 80Q(2) but which are subsequently identified as needing to be addressed can in fact be protected. I think I demonstrated the reason for regulation-making powers in the previous undertaking that I made in relation to Democrat amendment (9). I can foreshadow that the government will oppose Democrat amendments (10) and (13) as well.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

Just briefly, Labor have indicated that we will not be supporting the Democrat amendments other than (10) and (13) unless a cogent reason was advanced by the government to persuade us otherwise. However, I think amendment (9) is an important issue for the ABS. I note the government’s undertaking to ensure that the secrecy provisions do not compel the ABS to breach its own secrecy provisions. That will be designated in the regulations and therefore it will take care of that matter. I think that is an important issue, and I am pleased that the government has foreshadowed that and look forward to that regulation.

Question negatived.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

by leave—I move amendments (10) and (13), in effect in a foreshadowed way, together:

(10)  Schedule 1, item 1, page 8 (lines 32 and 33), omit paragraph 80Q(1)(b), substitute:

             (b)    the first person subsequently:

                   (i)    uses the information for purposes unrelated to the emergency declared under section 80J or 80K; or

                  (ii)    discloses the personal information; and

(13)  Schedule 1, item 1, page 9 (after line 23), after section 80Q, insert:

80QA Destruction of information

Information obtained in response to an emergency declaration under section 80J or 80K must be destroyed within one month after the declaration ceases to have effect, unless the person to whom the information relates consents to its retention.

                   (i)    uses the information for purposes unrelated to the emergency declared under section 80J or 80K; or

                  (ii)    discloses the personal information; and

As I have said, issues relating to the destruction of information are an important part of ensuring people’s confidence, even in the modified privacy regime, and I do not think these amendments would harm the effectiveness of the legislation. I take this chance also to note the government’s commitment regarding Bureau of Statistics and census material. Personally, I cannot see why it would not be more efficient just to put it in the act in order to make it clear rather than to leave it to government commitment to enforce in some way down the track, but I suppose the key part is ensuring that the outcome occurs. I am pleased to hear that, presuming the commitment is followed through with—and I am sure it will be—that is what will happen.

The only other point I would emphasise in speaking specifically to these amendments is that they are based on views that were put forward in the Senate committee process. The New South Wales Council for Civil Liberties, for example, specifically raised concerns regarding clause 80Q. In their view, that clause did not appear to prevent the use of information for an unrelated purpose and they suggested that it be made clearer—and I think the Democrat amendment does that.

When talking about privacy protections, it is important to ensure that public confidence applies. As I said at the start of my remarks on the second reading, it is fully understandable that people would think, ‘There is a disaster on; we don’t want all this annoying privacy red tape to get in the way of the immediate job at hand regarding flows of information.’ That is understandable. If the existing privacy laws are too restrictive to allow that to happen, the Democrats, as I have stated, support modifying them, but only in as much as is necessary. The other problem is that, if you open them up too widely—I think we need to recognise this also—you can have the same problem occurring for the reverse reasons: people think that there are inadequate protections guarding against their information being used by absolutely anybody for any unrelated purpose purely because the government says, ‘This is a disaster.’ It may mean that they are less likely to provide that information themselves and you then run into the same problem that other people cannot get access to that information and you do not get the free flow of it that is needed to adequately respond.

This is not just a position that the Democrats are taking because of a purist obsession with privacy—we do have a strong commitment to privacy, as I have indicated—but also a matter of practicality. If we weaken the privacy laws too much, you can also put in place a natural reluctance for people to provide information, because they are not going to provide it if they think it will be misused. That is the concern we have. I think amendments (10) and (13) go particularly to those concerns—that the information will not be used for unrelated purposes or at least that there is a penalty in place if it is used for unrelated purposes and also that it is destroyed once it is no longer necessary. They are valuable protections that would actually enhance the stated objective of these changes, which I think we all support.

I do not mean to imply that this whole legislation is some devious conspiracy by the government and that it has some hidden agenda to immediately dive forward and misuse privacy provisions. It is simply not the government taking the opportunity to give more power and more flexibility to itself to do what it feels like in certain circumstances. That is why you have legislative protections in the first place. It is always a balance. Even with the couple of amendments that have been made, I think this legislation still has the balance somewhat out of whack.

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The government opposes Democrat amendments (10) and (13). In relation to amendment (10), current paragraph 80Q(1)(b) in the bill is a standard offence provision relating to secondary disclosure and is preferred to the proposed amendment. This amendment by the Democrats will extend the ambit of the clause to secondary use of the information by all recipients. It would go beyond the ambit of the bill and, indeed, the Privacy Act if the recipient were not otherwise subject to the act. That is, it would extend the coverage of the Privacy Act to persons not otherwise covered within the act at this time. This is an offence provision; therefore, in the government’s view, that is quite a serious step.

In relation to amendment (13), the bill does not affect existing archives and records management regimes that exist at the Commonwealth and state levels. We believe that it would be inappropriate to undermine the existing record-keeping systems, including the Archives Act, for these particular purposes. Therefore, we believe that the period sought by the Democrats is inappropriate and that the other regimes in place should be kept.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

Just briefly, this matter relates to Democrat amendments (10) and (13). The government has not managed to persuade us why we should not continue to support these Democrat amendments. There is a concern here, particularly in relation to amendment (13), that information is managed appropriately, even if it is a belt and braces approach because of the type and style of this legislation. It is really necessary to ensure that the destruction of information can be undertaken and effected at an appropriate time, which is provided for in Democrat amendment (13).

Question negatived.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.