Update: The Privacy Act Review Report was released on 16 February 2023. NSWCCL was pleased to see that many of the recommendations the Council made in our submission were supported in the review.

A key recommendation in the review is ensuring the collection of, use and disclosure of personal information is fair and reasonable, including whether the “impact on privacy is proportionate to the benefit”. The Council supports the inclusion of non-exhaustive legislated factors that are relevant to determining whether the collection, use, or disclosure of personal information is fair and reasonable in the circumstances. However, it considers that clear guidance and examples of how these factors may apply in practice must be provided.

The standard of ‘fair and reasonable’ must be assessed by reference to the perspective of the individual, rather than being assessed from an APP entity’s perspective. We consider that having clear guidance from the outset, rather than waiting to see how the courts interpret such new provisions, will empower APP entities to appropriately assess whether any proposed data collection, use or disclosure would be unfairly prejudicial to, or unreasonable having consideration to the expectations of, the individual. In particular, to the extent that these factors do require consideration of what is ‘fair and reasonable’ from the perspective of the individual, the APP entity should be required to consider and satisfy each factor. This is because the protection of personal information and right to privacy should be fundamental to the Act, and should not be readily outweighed by business considerations.

The review has also proposed “direct right of action” that allows individuals to seek compensation in the Federal Court for a breach of privacy, which privacy advocates have long called for. To access the action, a claimant would first need to make a complaint to the Office of the Australian Information Commissioner (OAIC).

The Council supports the creation of a direct right of action. The NSWCCL considers it important that individuals can personally litigate a claim for breach of their privacy under the Privacy Act. However, the ability of individuals to do so is currently limited. The creation of a direct right of action would therefore give individuals greater control over their personal information by providing an additional avenue of redress under the Privacy Act. This, in turn, would encourage better compliance by APP entities of their privacy obligations under the Act.

However, the expansion of the OAIC’s funding is critical given that several proposals contained within the Discussion Paper involve the broadening of the OAIC’s current remit. Chronic underfunding will erode the effectiveness of any privacy protections the OAIC seeks to implement and support. To properly conduct both its existing and proposed activities, the OAIC must be adequately funded and consulted in respect of the resources it requires. The OAIC received limited funding to support its privacy initiatives in the 2021-2022 Federal Budget, despite a significant expansion in its activities with the onset of its Digital Economy Strategy.

NSWCCL made a submission to the Review of the Privacy Act 1988 advocating for urgent reform to modernise the Act and ensure it is fit for purpose in the digital economy. Privacy is a fundamental human right that is central to the maintenance of democratic societies and achieving respect for human dignity. In this regard, the NSWCCL submits that the right to privacy should be the paramount object of the Act and considers the two primary areas of concern in debates relating to privacy are:

NSWCCL made a submission to the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the Migration Amendment (Strengthening the Character Test) Bill 2021 [Provisions].

This is the third time that such a bill has been presented to Parliament. We made an extensive submission to the 2019 version of this bill, and those criticisms stand.

Australia has moved from deporting people who clearly are a danger and high risk, such as unrehabilitated murderers, to deporting people because a minister cannot be sure that they are not a danger to the community.

In fact, it we now accept deporting people to their likely death:

'counsel for the Minister suggested that much had changed since Ali and that the Minister was now more than prepared to proceed on the basis that Australia would breach its non-refoulement obligations and return the appellant to Iraq, even though it had been accepted that he was likely to be harmed or killed there'¹

Criticisms made by the Australian Human Rights Commission, the Australian Law Council, The Federation of Ethnic Communities Councils of Australia, the Parliamentary Joint Committee on Human Rights, the Scrutiny of Bills Committee and the Visa Cancellations Working Group also still apply.

We are disappointed that the Bill has been reintroduced without those criticisms being answered. 

Update 17 August 2022: The Commonwealth Government has completed its 2021-2022 review of the Legislation Act 2003. NSWCCL continues to hold the view that the recommendations of the committee could have and should have gone much further. Read our blog post here.

NSWCCL has made a submission to the Review of the Legislation Act 2003. 

It is extremely concerning that the Government has chosen - in the wake of the powerful arguments made in the Committee report on the overreach of exemptions to disallowance - to double down on the notion that the Executive should have untrammelled powers to rule by decree without parliamentary oversight.

On 18 November NSWCCL made a submission to the Inquiry into the Provisions of the Voluntary Assisted Dying Bill 2021.

We encourage NSW residents to let the Inquiry know how you feel via its online questionnaire (closing date Monday 22 November).

NSWCCL strongly supports the Bill, which has very strong public support and is long overdue. Death may be inevitable, but it need not be cruel. 

On 1 November 2021, NSWCCL made a submission to the Inquiry into the Public Interest Disclosures Bill 2021. The Bill re-writes protection for public officials who blow the whistle on wrongdoing, following a 2017 Joint Parliamentary Committee review that recommended a complete rewrite of the existing legislation.

NSWCCL endorses the Bill, which we note adopts nearly all the recommendations from the 2017 report, while noting some shortcomings.

NSWCCL and the Sydney Institute of Criminology have made a joint submission expressing concern about the Commonwealth’s continuing detention scheme for terrorist offenders and its lack of compatibility with human rights law and fundamental principles of criminal law.

We argue that serious consideration should be given as to whether the scheme is necessary. If the scheme is to continue, we argue that the scheme should be amended in substantial ways to enhance (to the extent possible) its compatibility with human rights law.

On 20 August, NSWCCL made a submission to the Senate Legal and Constitutional Affairs Legislation Committee in regard to the Inquiry into the Constitution Alteration (Freedom of Expression and Freedom of the Press) 2019 (Constitutional Alteration).

The NSWCCL endorses wholeheartedly the proposed Constitutional Alteration which aims to enshrine the right of freedom of expression, including freedom of the press and other media, in the Constitution. This will be achieved by inserting a new Chapter IIIA and section 80A in the Commonwealth of Australia Constitution Act 1900.

More information:

• The inquiry website, with all submissions 
• The NSWCCL submission as published on the inquiry website

On 16 July 2021, the NSW Council for Civil Liberties made a submission to the Digital Transformation Agency (DTA) in regard to the public consultation on the Digital Identity Legislation Position Paper.

NSWCCL welcomes the codification of the DIS which will embed privacy safeguards in primary legislation not in a subordinate instrument. The DIS claims to include a number of privacy features. The effect and success of which will be known once the draft legislation is introduced. 1 Such features include voluntary participation, no single identifier, express consent and Privacy Impact Assessments (PIA) for accreditation. Despite these provisions, there are clear weaknesses. The rules, for example, will allow for the PIA to be conducted by an assessor from within the same entity as the applicant; hardly independent.

More information:

• Digital Identity Legislation Position Paper
• Australia's Digital Identity Legislation - consultation site
• Our full submission

NSWCCL has made a submission to the Parliamentary Joint Committee on Intelligence and Security's Review of the Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020.  

If passed, this bill would cripple the ability of litigants to have access to information that is critical for their cases for retaining a visa, becoming citizens or retaining their citizenship. While it protects the constitutionally guaranteed powers of the High Court, the Federal Court and the Federal Circuit Court to know whatever information is relevant to their reviews of ministerial decisions, it would prevent other courts and other bodies from having such access. And vitally, it not only would allow protected information to be concealed from litigants and their counsel, it would allow them to be denied even the information that such information exists. In effect, only the Minister could use the information in court. This is unacceptable. It is contrary to Australia’s international obligations. But most importantly, it is a severe intrusion on the rights of a person to a fair hearing. It overturns the basic legal principle of equality before the law.

NSWCCL made a submission to the NSW Department of Communities and Justice Inquiry into the Privacy and Personal Information Protection Amendment Bill 2021.

This Bill

1. proposes the creation of a mandatory notification of data breach scheme
2. would extend the Act to include NSW State-Owned Corporations that are not already regulated by the Privacy Act 1988 (Cth)