Nick Minchin (SA, Liberal Party, Minister for Finance and Administration) Share this | Link to this | Hansard source

I present two government responses to committee reports as follows:

Legal and Constitutional Legislation Committee—Report—Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005—Government response, dated November 2006.

Legal and Constitutional References Committee—Report—The real Big Brother: Inquiry into the Privacy Act 1988—Govern-ment response.

In accordance with the usual practice, I seek leave to have the documents incorporated in Hansard.

Leave granted.

The documents read as follows—

GOVERNMENT RESPONSE TO SENATE LEGAL AND CONSTITUTIONAL LEG-ISLA-TION COMMITTEE REVIEW OF THE DEFENCE LEGISLATION AMENDMENT (Aid to Civil Authorities) BILL 2005

November 2006

RECOMMENDATION 1

The Committee recommends that the amendments to Part IIIAAA should include a statement of intent that the Part should apply only when all other avenues have been considered and rejected.

Government Response:

Not supported. The bill (now Act) indicates that an order is made and call out of the ADF activated only when a domestic security incident occurs or is likely to occur that exceeds or is likely to exceed the capacity of the civil authorities to deal with the incident. The Government is satisfied that this provision (which is consistent with the 2000 legislation) provides the necessary safeguards for the call out of the ADF.

The central principle underpinning Part IIIAAA is the provision of aid to the civil authorities. The authorising Minister(s) therefore need only be satisfied that the capacity of the civil authorities is overwhelmed, or will likely be overwhelmed, by a domestic security incident before authorising call out. However the inclusion of a statement of intent that the Part should apply only when all other avenues have been considered and rejected introduces additional layers of complexity that an authorising Minister(s) would be required to consider before call out. In particular, as all other avenues could apply to authorities, capabilities or agencies outside the scope of the civil authorities of a State or Territory, the inclusion of such a provision would go beyond the current purpose and construction of Part IIIAAA. This could potentially delay the making of an order and therefore inhibit the requirement for a flexible and effective ADF response to a domestic security incident.

RECOMMENDATION 2

The Committee recommends that a stronger proportionality test be included in Schedules 1 and 3.

Government Response:

Not supported. The concept of proportionality is already evident in the current legislation under Section 51T. Specifically, the use of ‘reasonable and necessary force’ is in essence a proportional response to an incident, where an ADF member is authorised to take appropriate action in relation to an incident. That is, an ADF member operating under Part IIIAAA is not automatically authorised to apply the most extreme form of force, but must apply a test of whether that force is both reasonable and necessary (and therefore clearly proportional) in responding to an incident.

Furthermore, this proportionality is subsequently captured in Defence processes, including Rules of Engagement.

Government Response to Recommendations of the Senate Legal and Constitutional References Committee Report The Real Big Brother: Inquiry into the Privacy Act 1988

Comprehensive Review

Recommendation 1

The committee recommends that the Australian Government undertake a comprehensive review of privacy regulation, including a review of the Privacy Act 1988 in its entirety, with the object of establishing a nationally consistent privacy protection regime which effectively protects the privacy of Australians.

Response

Agree. The Government has given a reference to the Australian Law Reform Commission (ALRC) to review the extent to which the Privacy Act 1988 and related laws continue to provide an effective framework for the protection of privacy in Australia. This review is due to be completed by March 2008.

Recommendation 2

The committee recommends that the Australian Law Reform Commission undertake the review proposed in recommendation 1 and present a report to Government and to Parliament.

Response

Agree (see response to Recommendation 1 above).

Consistency

Recommendation 3

The committee recommends that the review by the Australian Law Reform Commission, as proposed in recommendations 1 and 2, examine measures to reduce inconsistency across Commonwealth, state and territory laws relating to, or impacting upon, privacy.

Response

Noted.

Recommendation 4

The committee recommends the development of a single set of privacy principles to replace both the National Privacy Principles and Information Privacy Principles, in order to achieve consistency of privacy regulation between the private and public sectors. These principles could be developed as part of the review by the Australian Law Reform Commission, as proposed in recommendations 1 and 2.

Response

Noted.

Emerging Technologies

Recommendation 5

The committee recommends the Privacy Act be amended to include a statutory privacy impact assessment process to be conducted in relation to new projects or developments which may have a significant impact on the collection, use or matching of personal information.

Response

Not agree. The Government notes that the Privacy Commissioner is developing a privacy impact assessment process for use by agencies and considers that at this time a statutory process is not appropriate.

Recommendation 6

The committee recommends that the review by the Australian Law Reform Commission, as proposed in recommendations 1 and 2, examine the definition of ‘personal information’ in the Privacy Act 1988, and also any amendments to the definition which may reflect technological advances and international developments in privacy law.

Response

Noted.

Genetic Information

Recommendation 7

The committee recommends that the Australian Government responds to, and implements, the recommendations of the Essentially Yours report into the protection of genetic information by the Australian Law Reform Commission and the Australian Health Ethics Committee of the National Health and Medical Research Council, as a high priority.

Response

Noted. It is noted that the Privacy Legislation Amendment Act 2006 implemented some of the recommendations of the ALRC Report Essentially Yours. (This was done by amending the Privacy Act 1988 to include genetic information in the definitions of sensitive and health information. The amendment also provides for the disclosure of genetic information when there is a serious risk to the health of an individual.)

Other Technologies

Recommendation 8

The committee recommends that the review by the Australian Law Reform Commission, as proposed in recommendations 1 and 2, include consideration of the privacy implications of new and emerging technologies with a view to ensuring that these technologies are subject to appropriate privacy regulation.

Response

Agree. The ALRC has been asked to consider the privacy implications of the rapid advances in information, communication, storage, surveillance and other relevant technologies as part of its privacy review.

Recommendation 9

The committee recommends that the review by the Australian Law Reform Commission, as proposed in recommendations 1 and 2, consider the interaction of the Privacy Act 1988 and the Telecommunications Act 1997 with a view to recommending measures to reduce inconsistency between these pieces of legislation and to ensure that privacy is adequately protected in the telecommunications area.

Response

Noted.

Private sector provisions

Recommendation 10

The committee recommends that the Australian Government responds to, and implements, the recommendations of the review of the private sector provisions by Office of the Privacy Commissioner as a high priority.

Response

Noted.

Exemptions

Recommendation 11

The committee recommends that the review by the Australian Law Reform Commission, as proposed at recommendations 1 and 2, examine the operation of, and need for, the exemptions under the Privacy Act 1988, particularly in relation to political acts and practices.

Response

Noted.

Small Business

Recommendation 12

The committee recommends that the small business exemption be removed from the Privacy Act 1988.

Response

Not agree. The Government considers that the small business exemption strikes an appropriate balance between the risk of privacy breaches and over regulation of small businesses. Removal of the exemption would be inconsistent with the Government’s commitment to workplace reform and cutting red tape.

Employment records

Recommendation 13

The committee recommends that the privacy of employee records be protected under the Privacy Act 1988.

Response

Noted.

Recommendation 14

The committee recommends that the review by the Australian Law Reform Commission, as proposed at recommendations 1 and 2, should examine the precise mechanisms under the Privacy Act to best protect employee records.

Response

Noted.

Direct Marketing

Recommendation 15

The committee recommends that the review by the Australian Law Reform Commission, as proposed at recommendations 1 and 2, consider the possibility of an ‘opt in’ regime for direct marketing in line with the Spam Act 2003.

Response

Not agree. The appropriate mechanism for dealing with privacy issues raised by direct marketing is a matter that could be considered as part of the ALRC review.

EU Adequacy

Recommendation 16

The committee recommends that the review by the Australian Law Reform Commission, as proposed at recommendations 1 and 2, examine measures that could be taken to assist recognition of Australia’s privacy laws under the European Union Data Protection Directive.

Response

Not agree. International negotiations are a matter for the Australian Government and negotiations with the European Union are ongoing.

Credit Reporting

Recommendation 17

The Committee recommends that the Privacy Act not be amended to allow the introduction of positive credit reporting in Australia.

Response

Not agree. Review of the credit reporting provisions in the Privacy Act is a matter that could be considered as part of the ALRC review.

Health information & medical research

Recommendation 18

The Committee recommends that the Australian Government, as part of a wider review of the Privacy Act, determine, with appropriate consultation and public debate, what is the appropriate balance between facilitating medical research for public benefit and individual privacy and the right of consent.

Response

Noted.

Resourcing & powers of the OPC

Recommendation 19

The committee recommends that the Australian Government provide an immediate allocation of additional funding to the Office of the Privacy Commissioner to enable it to more efficiently and effectively fulfil its mandate and to ensure genuine and systemic improvements to its operation, both now and into the future.

Response

Noted. The Office of the Privacy Commissioner received a substantial increase in funding of $8.1 million over four years in the 2006-07 Budget.

Responsibility for administration of the Office of the Privacy Commissioner, including decisions about the allocation of resources, is a matter for the Office itself.