As previously submitted, privacy is a fundamental human right that is central to the maintenance of democratic societies and achieving respect for human dignity. To this end, urgent reform is required to modernise the Act and ensure it is fit for purpose in the digital age, and the NSWCCL reiterates its previous submissions outlined in its response dated 9 January 2022 to the Attorney General’s Privacy Act Review Discussion Paper.
In principle, the NSWCCL is broadly supportive of many of the proposals outlined in the Attorney General’s Report and commends the Attorney General and his Department for reflecting the legitimate privacy concerns of a broad spectrum of society. In the context of ever-increasing integration of digital technology across various facets of everyday life, society and the economy, the proposals outlined in the Report are an important step toward modernising Australia’s privacy regime and addressing the gaps and ambiguities that persist in the existing regime that presently undermine the right to privacy.
In our submission NSWCCL provides feedback on certain matters and proposals outlined in the Report requiring further adjustment from a human rights perspective. However, the NSWCCL also makes the following overarching submissions for the Attorney General’s Department to consider in finalising its review of the Act:
• The NSWCCL’s main position is that the Act must ensure functional and effective safeguards to protect the fundamental human right to privacy of all Australians. As the NSWCCL stated in its response to the Discussion Paper, the Act's primary purpose should be to protect the right to privacy, which encompasses two key aspects: (i) the prevention of unwarranted interference with one's actions (by surveillance, listening, data analysis or other means); and (ii) the control and prevention of misuse of personal information. Enshrining the protection of an individual’s right to privacy as the paramount object of the Act is an important step, and the Attorney General should be commended for Proposals 3.1 and 3.2 in this regard. However, the object of the Act should be amended to recognise a ‘right to privacy’.
• The NSWCCL reiterates its previous submission that the object of the Act should recognise a fundamental right to privacy. Moreover, with respect to the object of the Act: (i) it is preferable that express guidance is provided via the definition of ‘privacy’; (ii) if a public interest test is introduced, then the definition of ‘public interest’ must be broad and flexible to allow interpretation of the phrase to evolve over time and to account for various factual matrixes; (iii) the listing of specific matters considered to be in the ‘public interest’ should be avoided (as these will change with the passage of time); and (iv) any balancing test should adhere to the guidelines of proportionality analysis developed through case law, as this will ensure that any incursion on privacy must itself be undertaken in a balanced and proportionate way.
• The introduction of further organisational accountability requirements with respect to the collection, handling, storage and use of personal information are necessary amendments to the Act. In light of information and power asymmetries in the processing of personal information, individuals should not be expected to bear the burden of managing privacy risks themselves. Placing the burden of privacy protection onto the individual is unfair and impractical. It is the organisations that hold personal information – governments and businesses – that must bear responsibility for respecting the right to privacy.
• The expansion of the OAIC’s funding is critical. This is necessary given a number of the proposals will require the OAIC to take on an expanded function and the OAIC is already receiving limited funding to support its privacy initiatives (despite the significant expansion of its activities with the onset of the Federal Government’s Digital Economy Strategy). While the NSWCCL supports the Report’s proposals that further work should be done to investigate the effectiveness of an industry funding model for the OAIC and a litigation fund, the NSWCCL considers that each of these matters should be prioritised and not delayed. Unless the OAIC receives adequate resources and funding to perform the additional duties outlined in the Report, the NSWCCL is concerned that the efficacy of these proposals will be undermined.
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