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Online Privacy Bill Exposure Draft

The submission to the Commonwealth Attorney-General’s Department in relation to its exposure draft of the Privacy Legislation Amendment (Enhancing Online Privacy and Other Measures) Bill 2021 (Exposure Draft) and accompanying Explanatory Paper was prepared by the Law Council of Australia. 

 The Law Council acknowledges that the Exposure Draft represents an initial step towards addressing the privacy challenges posed by social media and certain other online platforms by strengthening the operation of the Privacy Act 1988 (Cth) (Privacy Act). The Exposure Draft approaches this challenge by allowing for the introduction of a binding Online Privacy (OP) code for such platforms, setting out how they will comply with the Australian Privacy Principles (APP).

The Exposure Draft Bill, if passed in its current form, will also substantially increase the scope and size of the penalties applicable to all APP entities. This increase will take place before any substantive reforms as to the content of the Privacy Act. This fragmentation in the reform process is regrettable and may expose APP entities to an increase in their respective compliance burden without a corresponding uplift in certainty of the standards that they are required to meet.

The Law Council is engaging with the concurrent review of the Privacy Act and notes the importance of consistency and compatibility between Australia’s existing privacy legislation, anticipated reforms, and the OP code. To this end, there must be a concerted effort to avoid fragmentation in the reform process, as set out below. Consideration should be given to progressing the OP code only after the Privacy Act review is complete to help ensure that the instruments are complementary.

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