Australia’s Privacy Bill 2012: Weaker Principles, Stronger Enforcement

Abstract

The Privacy Amendment (Enhancing Privacy Protection) Bill 2012 is claimed by the Australian government to be a major ‘pro-privacy’ reform of Australia’s Privacy Act 1988. This article gives a brief explanation of why this is not so. The Bill strengthens the powers of the Privacy Commissioner in a number of desirable ways, but these reforms are undermined by inadequate reform of the Commissioner’s most important power, the making of determinations (enforceable decisions concerning complaints) under s52. Unless the Commissioner can be required by complainants to make decisions (only 9 have been made in 23 years), the new right of appeal against the Commissioner’s decisions will be meaningless. Appeal rights are no use if there are no decisions against which to appeal. Although the proposed Australian Privacy Principles (APPs) are supposedly a welcome consolidation of disparate sets of principles, eight of the thirteen principles in the Bill are generally weaker than the current principles or those proposed by the Australian Law Reform Commission (ALRC), and the principles dealing with data exports, and with anonymity in data collection, are particularly retrograde. The Bill gives the credit reporting industry the right to share information about Australians who have never had a credit default. The overall effect of this part of the reforms is a major loss of financial privacy for all Australians The Bill does not remove the unjustifiable exemptions from the Act for ‘small’ businesses, employment records and political matters (reforms proposed by the ALRC). Overall, the Bill seems to be a missed opportunity for a once-in-a-generation reform of privacy law.

(A more detailed analysis by the authors, prepared by the authors for the Australian Privacy Foundation, ‘A critique of Australia’s proposed Privacy Amendment (Enhancing Privacy Protection) Bill 2012’, is also available from the authors’ pages on SSRN/LSN.)

Keywords: privacy, data protection, Australia