First the celebration about Privacy Reform quickly followed by a more assessment of the Privacy Commissioner’s resources to exercise her newly granted powers. The reality is sobering

November 29, 2024 |

Following the passage of the Privacy and Other Legislation Amendment Bill 2024 this morning it is not surprising that the Attorney General will take a victory lap with a press release titled Delivering stronger privacy protections for Australians. The sobering reality is that the Office of the Information Commissioner is currently under resourced. Innovation Aus reports in OAIC slashes staff to meet $11m budget crunch that the Office is sacking staff to comply with a 23% budget cut from the government.

Not surprisingly the Privacy Commissioner took a moment to welcome her increased powers. She made the point of saying it was only the first step. And never a truer word was said.

It makes little sense to provide enhanced powers to the Commissioner, presumably expecting her to exercise those powers, while cutting the resources necessary to exercise those powers. Unfortunately it is a familiar story with the Privacy Commissioner then Information Commissioner’s office.  That is not to say that the Office has occasionally used this problem as an excuse to be a timid regulator when more action was called for.

The Attorney General’s media release provides:

The Albanese Government has delivered landmark legislation to strengthen privacy protections for all Australians and outlaw doxxing.

Australians want their privacy respected. When they are asked to hand over their personal data Australians expect it will be protected.

The Privacy and Other Legislation Amendment Bill 2024 implements a first tranche of recommendations from the Privacy Act Review, including:

    • a new statutory tort to address serious invasions of privacy
    • a Children’s Online Privacy Code to better protect children from a range of online harms, including $3 million over three years for the Office of the Australian Information Commissioner to support its development
    • greater transparency for individuals affected by automated decisions
    • streamlined information sharing in the case of an emergency data breach, while ensuring that information is appropriately protected
    • stronger enforcement powers for the Australian Information Commissioner The legislation also introduces new criminal offences to outlaw doxxing with serious criminal penalties of up to 7 years imprisonment. Doxxing is a form of abuse that can affect all Australians but is often used against women in the context of domestic and family violence.

The Government is committed to ensuring the Privacy Act works for all Australians and is fit for purpose in the digital age.

The legislation builds on the significant steps already taken by the Albanese Government on privacy, including:

    • significantly increased penalties for repeated or serious privacy breaches
    • greater powers for the Australian Information Commissioner to resolve privacy breaches and quickly share information about data breaches
    • restoration of the standalone position of the Australian Privacy Commissioner

The legislation passed today is just the first stage of the Albanese Government’s commitment to provide individuals with greater control over their personal information.

The Albanese Government will continue to consult the Australian community on further privacy reforms.

The Privacy Commissioner’s media release provides:

The Office of the Australian Information Commissioner (OAIC) welcomes the passing of the Privacy and Other Legislation Amendment Bill 2024 as a significant step forward in advancing privacy protections for the Australian community.

The Bill contains significant measures including:

    • the introduction of a statutory tort for serious invasions of privacy, giving individuals a route to seek redress for privacy harms in the courts
    • the expansion of the OAIC’s enforcement and investigation powers, including new tiers of civil penalties and the ability to issue infringement notices
    • a mandate for the OAIC to develop a Children’s Online Privacy Code, which will cover not only social media platforms but any online services likely to be accessed by children
    • a new mechanism to prescribe a ‘white list’ of countries and binding schemes with adequate privacy protections to facilitate cross-border data transfers
    • a requirement that privacy policies contain information about substantially automated decisions which significantly affect individuals’ rights or interests, including the kinds of decisions and kinds of personal information used.

“These new powers and functions come at a critical time, as privacy harms increase and the Australian community demands more power over their personal information,” Australian Privacy Commissioner Carly Kind said.

“They have had a long gestation. Many have campaigned for reform – in some cases for more than a decade – so their efforts need to be recognised today.

“The reforms are an important first step. More needs to be done of course, and we appreciate the government’s commitment to further action.”

The Innovation article provides:

The privacy and information watchdog has slashed dozens of staff in response to a 23 per cent budget cut by government and a review by management consultants, sparking fears it will be ill equipped to deal with key policy changes like the social media ban.

Senior officials confirmed the cuts on Wednesday and said a new  structure at the Office of the Australian Information Commissioner (OAIC) will in place from early next month.

Changes have been underway since July, when dedicated funding for social media and data breach complaints and enforcement ended, despite rising privacy issues and breaches worsening in scale and complexity.

The budget cuts, together totalling more than $11 million, were detailed for the first time at a Senate Estimates hearing on Wednesday night.

The cuts brought down the agency’s annual staffing level from 202 last financial year to around 165 this year and ended some dedicated programs to uplift compliance and enforcement.

Greens Senator David Shoebridge said the cuts were concerning for an agency that has historically been under resourced, and with looming changes like a social media ban for under-16s.

“We are in the middle of a national debate about privacy concerns on social media, real concerns about potentially changes in regulation which will have significant privacy impacts for users of social media, and the government’s cut your funding,” Senator Shoebridge said.

The staffing changes followed a strategic review of the regulator and recommendations for change by global management consultancy Nous Group.

The $817,700 review recommended a more risk-based regulatory posture and more focus on enforcement and education after finding the OAIC’s structure was not suitable for achieving the regulator’s purpose.

“[The current structure] does not promote an integrated approach to regulation,” the Nous review, released in part under Freedom of Information laws, found.

“It also duplicates functions across branches, which has resulted in inefficiencies, inconsistent practices, and missed opportunities for integrated functions across FOI and privacy.”

The review also warned of overworked staff that are paid less than other federal agencies or equivalent roles in the state government or private sector.

Australian Information Commissioner Elizabeth Tydd, who was appointed after the Nous review, on Wednesday said her agency is nearing the end of its restructure.

She said 70 per cent of OAIC staff were directly appointed to positions in the new structure. But 60 other staff were subject to a “spill and fill” – an employer decision to make positions vacant and force staff to express interest for roles.

Ms Tydd said less than 10 staff no longer have a role at the OAIC because of the changes.

The revised structure at the OAIC has created and blended divisions, including ones dedicated to information rights and regulatory action, a strategy and intelligence division, and corporate services.

The new structures commence on December 2nd.

 

 

 

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