Privacy And Data Protection Bill

About this Item
Speakers - Whelan Mr Paul; Humpherson Mr Andrew; Kinross Mr Jeremy
Business - Bill, Second Reading

PRIVACY AND DATA PROTECTION BILL

Second Reading

Debate resumed from 1 June.

Mr WHELAN (Ashfield - Minister for Police) [11.06]: The Privacy and Data Protection Bill introduced by the honourable member for Eastwood is in identical terms to the Privacy and Data Protection Bill 1994 introduced into the Legislative Council by the previous Government. Both the honourable member for Eastwood and the former Attorney General, when introducing their respective bills, explained that the legislation was a response to the recommendations of the Independent Commission Against Corruption in its report on the unauthorised release of government information. When the 1994 Government bill was debated in the Legislative Council the Hon. I. M. Macdonald, on behalf of the Labor Party, welcomed the fact that the previous Government had finally made some attempt to address the issue raised by the ICAC in its report. The Hon. I. M. Macdonald and the Hon. Elisabeth Kirkby pointed out, however, that there were substantial weaknesses in the approach of the bill.

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The points made included the need for further consideration of the scope of the offence provisions, the potential for significant disparity between the codes adopted by department heads and the data protection principles recognised by the bill, and the fact that the proposed Privacy Commissioner's advisory powers in relation to the private sector would seem even more limited than those currently enjoyed by the New South Wales Privacy Committee, which, of course, would be abolished by the bill. The previous Government as much as acknowledged the flaws in the bill when it determined that the bill be referred to a Legislative Council select committee for further consideration. The select committee lapsed when the Parliament was prorogued. However, the shortcomings of the bill were amply demonstrated by the New South Wales Privacy Committee submission to the select committee. While the committee in its submission welcomed the fact that the previous Government had finally taken steps to address the issue of personal privacy, it was also made clear that the committee considered the bill as introduced to be seriously flawed. I quote from page 2 of the committee's submission:

Unfortunately the bill is seriously flawed in a number of important respects, including the following:

The data protection principles set out in the bill are unenforceable and public authorities are ultimately free to decide the extent to which they will comply with the principles;

The data protection principles contain broad exemptions in favour of law enforcement, criminal intelligence and revenue protection which are unnecessarily wide and capable of abuse;

The bill permits virtually unrestricted data matching between public authorities;

The bill contains no remedies for people who are adversely affected by serious breaches of the data protection principles;

The Privacy Commissioner is given no power to act on complaints other than to write reports;

The bill has very weak application to the private sector.

The committee at page 24 of its submission stated:

As it stands, the Privacy and Data Protection Bill qualifies as probably the weakest attempt at data protection legislation world wide. There are no precedents for giving heads of public agencies the ultimate power to choose whether or not to comply with the data protection principles.

Obviously, there is a range of factors and views that must be considered and taken into account when formulating legislation of this nature. However, as was clearly stated by the Privacy Committee, there can be no doubt that the bill fell well short of the mark. The honourable member for Eastwood suggested that the Labor Party in opposition supported the bill of the previous Government. I have made it clear that is not the case. What the Labor Party did was support the bill being referred to a legislation committee, in the hope that it might lead to some of the bill's shortcomings being addressed. While the Government has no doubt about the need for an appropriate legislative response to the findings made by the Independent Commission Against Corruption report, there can equally be no doubt that the Privacy and Data Protection Bill requires detailed and fundamental reconsideration. The Government is serious about protecting privacy and doing the job properly. The Attorney General, the Hon. J. W. Shaw, QC, MLC, has indicated that he has asked his administration to give further consideration to the issue of privacy and data protection legislation with a view to Government proposals being developed as soon as practicable. For the reasons I have stated, the Government intends to oppose the Private and Data Protection Bill.

Mr HUMPHERSON (Davidson) [11.10]: I speak briefly and strongly in support of the bill. It is important to enshrine in legislation the principles that apply to privacy and data protection. The bill contains 11 data protection principles and also proposes a mechanism by which public sector and other information is protected. The essential principles include the manner and purpose of collection of information. That information should be lawfully collected and should be relevant to the function of the collector. Principle 2 provides that personal information should, wherever practicable, be obtained directly from the individual concerned and not from other sources. Principle 3 states that information collected should be relevant for the purpose for which it is collected; it should be accurate and should not unreasonably intrude on the privacy of an individual. Principle 4 refers to the storage and security of information, and states that it should be stored for specified, explicit and lawful purposes, and used in a way consistent with those purposes. It should be kept for no longer than is necessary.

Principle 6 is important and states that where the information refers to an individual, that person should, without excessive delay or expense, have access to the records relating to them. Principle 9 relates to limits proposed on the disclosure of personal information. Information can be released or disclosed only in accordance with the law or with the concurrence of the individual concerned. The data protection principles form the basis of the bill. It will be necessary to take into account the special needs of certain industry groups, such as private detectives and investigation agencies, in order to ensure that they are able to carry out their duties, and at the same time able to comply with the provisions of this legislation. Such industry groups must be able to pursue their lawful duties, but mechanisms must also exist to ensure that strict terms and conditions apply to their access to such information. I strongly support the bill.

Mr KINROSS (Gordon) [11.17]: "Every breath you take, every move you make . . . every step you take, I'll be watching you." They were the words of Sting and the group The Police in a hit song that ran for 10 weeks as a number one single in the early 1980s. It says something about the role of privacy in our community when a pop group can capture worldwide attention with a hit song that reflects fundamental principles of human rights. One of the fundamental rights that the previous Government introduced was a right to know. I refer to the
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Freedom of Information Act that was introduced by my predecessor as member for Gordon, the Hon. Tim Moore, a former Minister for the Environment. I contend that, just as the right to know is a fundamental right, so also is the right to privacy a fundamental right.

On 21 August 1995 Bernard Lagan wrote in the Sydney Morning Herald that, second only to the issue of the economy, Australians were fundamentally concerned with the right to privacy - indeed, I think the figure was something like 70 per cent. Soon after that newspaper report, Chris Puplick issued a report relating to the privacy aspect of smartcards and their fundamental intrusion on people's rights. Privacy and personal freedom are fundamental rights. I congratulate the honourable member for Eastwood on his persistent determination to have this legislation debated. It is an issue that has affected many people, not only in this State but in Australia and worldwide. No doubt that is one reason the Commonwealth Government sought to introduce privacy legislation.

It is not my intention to traverse some of the comments made by the honourable member for Bligh in relation to a former member of this House. Privacy is a fundamental right and the importance of that right was demonstrated by that member's actions. The fundamental requirement for privacy and data protection as encapsulated in this bill is borne out in reports from government departments, in the report of the Independent Commission Against Corruption into the release of unauthorised information and, indeed, in the daily activities of working men and women in this State. Late last year in this House I spoke about a proposal for truth and public interest in relation to defamation matters. One has only to refer to the unnecessary voyeurism and titillation that the media engage in and I refer, for example, to the Greg Chappell case. That was a classic case where no public interest was served. There was a right to privacy, it was not protected and the court found in favour of Greg Chappell.

Much has been said about the media, including recent debate about camera intrusion, spying in lifts, and spying in the workplace. I will not canvass the numerous newspaper articles referring to that, but intrusion occurs elsewhere, including railway stations. The question is one of balancing competing interests: the right to have access to State property and the right of individual liberty of a citizen. Sometimes there is excessive intrusion. Stuart Littlemore - whether you love him or hate him - portrays in his program gross breaches of privacy by the media. Recently camera crews were seen to be invading a person's home and little effective attempt was made to gain that person's permission before the cameras started rolling, and the film is often shown later in the evening across the news network.

It is important to note in relation to data protection that the Federal Government proposes to issue a major statement on innovation and information technology later this year. Originally it was scheduled for August and was put off until October. I believe it will now be introduced in late November or in December. With the growing tendency of the computer age to affect all of our lives, the biggest intruder, the biggest spy, is government. Bureaucracy - with its largesse for gathering information - all portends of big brother. I finish where I began: that the words of a pop group that reflected a fundamental principle about privacy ought to be adhered to by this Parliament. That principle is encapsulated in this bill and every member of this House should support the bill wholeheartedly.

Debate adjourned on motion by Mr Gibson.

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