The Senate Legal and Constitutional Affairs Legislation Committee releases its report on Privacy and Other Legislation Amendment Bill 2024 [Provisions]

November 15, 2024 |

The Senate Legal and Constitutional Affairs Legislation Committee yesterday released its report on Privacy and Other Legislation Amendment Bill 2024.  It is overwhelmingly supportive of the Bill. 

Its recommendations are:

Recommendation 1
 The committee recommends that the minimum consultation period for the Children’s Online Privacy Code is extended to at least 60 days.
Recommendation 2
The committee recommends that the bill is amended to include a requirement for the Information Commissioner to consult with relevant industry bodies or organisations when developing the Children’s Online Privacy Code.
Recommendation 3
The committee recommends the exclusion for media organisations from accessing personal information during declared emergencies is extended to exclude national broadcasters such as the ABC and Special Broadcasting Service.
Recommendation 4
The committee recommends that the bill is amended to empower the Information Commissioner to issue a discretionary notice to an entity to remedy an alleged breach of one or more of the provisions in section 13K before issuing an infringement notice.
Recommendation 5
The committee recommends that the Explanatory Memorandum to the bill is amended to make clear that the level of information required in privacy policies is not expected to compromise commercial-in-confidence information about automated decision-making systems.
Recommendation 6
The committee recommends that the Commonwealth government considers amending clause 7 of the bill to:
• require a court to consider the matters of public interest that justify the invasion of the plaintiff’s privacy;
• not require a defendant to adduce evidence of public interest in every case; and
•provide that ‘artistic expression’ is a form of freedom of expression.
Recommendation 7
The committee recommends that the Commonwealth government considers amending Schedule 2 of the bill to ensure that the journalism exemption applies to a person involved in the publication, re-publication or distribution of journalistic material.
Recommendation 8
The committee recommends that Schedule 2 of the bill is amended to make clear that the concept of ‘journalistic material’ for the serious invasions of privacy tort includes ‘editorial’ material.
Recommendation 9
The committee recommends that Schedule 2 is amended to make clear that the power conferred on a court to issue an injunction is not limited to an ‘interim’ injunction.
Recommendation 10
Subject to the preceding recommendations, the committee recommends that the Senate passes the bill.

What is notable about the Report is that it did not really grapple with the limiting nature of the tort in not including negligent acts.  Relying on speculation by Professor MacDonald and David Rolph is not very strong analysis.  It also failed to properly explain why the journalist exemption was appropriate.  That exemption  was never advocated by the Australian Law Reform Commissions and is not part of the jurisprudence in other jurisdictions.  This is where the politics plays a part.  The Committee is controlled by the party of Government and the exemption is a threshold issue. In fact the Committee wishes to clarify and expand the exemption. 

My submission was explictly quoted at 2.224 where the Report stated:

2.224 Peter Clarke suggested that instead of a blanket exemption, the bill should be redrafted to include ‘[r]obust defences in support of journalists properly undertaking their profession’. In his view, the exemption ‘goes beyond free expression and supporting the legitimate exercise of journalism but provides a blanket coverage to the excesses committed by journalists which should not be tolerated’.224

and

2.249 Peter Clarke asserted that the exemption for ‘enforcement bodies is too wide’. He indicated that enforcement bodies, including police services, ‘have had a chronic problem of misusing information or abusing their positions. The exemption should not exist. There should be a defence available to enforcement bodies’.251

If the Committee’s recommendations is the extent of the complaint about the Bill it should have a relatively quick passage through the Senate.  But then again, it is the Senate.

 

 

 

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