Updated Privacy Act vital in the digital age
29 September 2023
The Law Council of Australia welcomes today’s release of the Government’s response to the Privacy Act Review Report as an important step towards ensuring the nation’s privacy laws keep pace with technology and community expectations.
“Noting that the majority of the Government’s responses are 'in-principle agreement', there is a significant amount of further work to be done in terms of additional consultation prior to implementation. The Law Council looks forward to further engagement to progress these reforms in a timely and considered manner,” Law Council of Australia President, Mr Luke Murphy said.
The Law Council particularly supports the Government's in-principle agreement towards clarifying an expansive definition of 'personal information' under the Privacy Act, noting that this is a central concept to privacy law in Australia. The removal of these ambiguities will deliver much-required certainty as to the scope and substance of the regime.
The Law Council further welcomes the Government's in-principle endorsement of expanded avenues for individuals to seek redress for interferences with their privacy, including a direct right of action to the courts to seek remedies for breaches of the Privacy Act, and the introduction of a statutory tort for serious invasions of privacy. It has received general support for these avenues to be further explored, while noting that views across some parts of the legal profession differ. The Law Council agrees that careful consideration as to the scope of these redress options will be required, to ensure that appropriate thresholds are in place, and to minimise the potential for unintended consequences.
“The Government has provided in-principle support for a new requirement that the collection, use and disclosure of personal information is fair and reasonable in the circumstances. This is a positive development towards the creation of an overarching standard for the handling of personal information that is aligned with community expectations,” Mr Murphy said. “However, the Law Council reiterates its view that clear guidance must be prepared that addresses the concept of fairness and reasonableness as it operates in the context of information rights.”
“We are pleased to see the Government's support for improvements to the transparency and integrity of decisions made using automated decision-making systems. Automated decisions have the potential to have significant effects on the rights of individuals, and enhanced transparency mechanisms, as recommended in the Privacy Act Review Report, will assist to empower individuals to have greater clarity on how these decisions are made.”
The Law Council notes that many of the agreed proposals emphasise stronger enforcement and management of data breaches and security. It will be important to get the balance right to avoid unnecessary complexity as laws are developed, especially new penalty regimes.
“The Government has undertaken to work with stakeholders to inform the development of legislation and guidance material in this term of Parliament,” Mr Murphy noted. “Ensuring that there are appropriate opportunities to consult on exposure drafts and draft guidance will be important in this context, noting that many of the proposals agreed to are non-legislative.”
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