It has taken a while but the Government has finally released its repoonse to the Senate Legal and Constitutional Affairs Legislation Committee report.  Most of the recommendations related to machinery issues and were thus easily accepted.

The response provides:

The Australian Government welcomes the opportunity to respond to the Senate Legal and Constitutional Affairs Legislation Committee’s report, Privacy and Other Legislation Amendment Bill 2024 [Provisions] (the Report), tabled on 14 November 2024.

The Government thanks individuals and organisations that contributed to the Committee’s inquiry, including in preparing written submissions and appearing before the Committee.

The Government moved a number of amendments to the Privacy and Other Legislation Amendment Bill 2024 (the Bill) to implement recommendations of the Report.

The Bill passed the Parliament on 29 November 2024, and received Royal Assent on 10 December 2024.

The Privacy and Other Legislation Amendment Act 2024 makes a range of important amendments to strengthen privacy protections for Australians. The Act:

• • requires the development of a Children’s Online Privacy Code which will apply to social media and other internet services which are likely to be accessed by children
  • enables streamlined information sharing in the case of an emergency or an eligible data breach, while ensuring that information is appropriately protected
  • supports the free flow of information with appropriate protections by providing for countries and binding schemes with substantially similar data privacy protections to Australia to be prescribed
  • expands the suite of regulator powers and enforcement options available to the Australian Information Commissioner to effectively protect privacy
  • provides individuals with transparency about the use of their personal information in automated decisions which significantly affect their rights and interests
  • establishes a statutory tort for serious invasions of privacy, and
  • creates new criminal offences targeting the release of personal data in a manner that is menacing or harassing – a practice known as ‘doxxing’.

The Australian Government’s response to the Report is set out below. The response addresses the recommendations contained in the Report and in the additional comments

Committee’s Recommendations

Recommendation 1

The committee recommends that the minimum consultation period for the Children’s Online Privacy Code is extended to at least 60 days.

The Government agrees to this recommendation.

The Government recognises the importance of allowing sufficient time to seek meaningful input from children and other stakeholders on the draft Children’s Online Privacy Code (COP Code). The Government amended the Bill to increase the minimum consultation period for the draft COP Code to 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

The Government agrees in part with this recommendation.

The Government recognises the importance of consultation with industry organisations or bodies representing entities that may potentially be bound by the COP Code as part of its development. The Government amended the Bill to include reference to such industry organisations or bodies in the indicative list of individuals or entities that the Information Commissioner may consult with when developing the COP Code. This list also includes children, relevant organisations or bodies concerned with children’s welfare and any other person the Information Commissioner considers appropriate.

The relevant provision confers discretion on (rather than mandates) the Information Commissioner to consult when developing the COP Code. This avoids the unintended consequence of invalidating the COP Code if the Information Commissioner is unable to consult exhaustively with certain organisations, bodies or persons.

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.

The Government agrees to this recommendation.

The Government amended the Bill to ensure national broadcasters (the ABC and SBS) are excluded from accessing personal information under the emergency declaration provisions

The Government agrees to this recommendation.

The Government amended the Bill to ensure national broadcasters (the ABC and SBS) are excluded from accessing personal information under the emergency declaration provisions

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.

The Government agrees to this recommendation.

The Government amended the Bill to give the Information Commissioner and certain other authorised persons a discretionary power to issue a compliance notice to an entity to remedy an alleged breach of one or more of the provisions set out in section 13K before issuing an infringement notice. This will enable the Information Commissioner and other authorised persons to provide additional information to entities on how to comply with their obligations under the Act if they reasonably believe the entity has contravened section 13K.

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.

The Government agrees to this recommendation.

The Government recognises the importance of increasing transparency for Australians without unduly limiting businesses’ ability to carry on their operations.

The Government included information in the addendum to the Explanatory Memorandum to the Bill to clarify that the 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

The Government agrees to this recommendation.

The Government amended the Bill to require consideration of public interest balancing in every case with no requirement on a defendant to adduce evidence about public interests. This amendment recognises that public interest balancing may involve questions of law and fact, and that a court may take judicial notice of public interests from the circumstances of the case.

The Government also amended the Bill to include express reference to artistic expression as a form of freedom of expression. Although the list of public interest factors is non-exhaustive, the express inclusion of artistic expression is consistent with the Australian Law Reform Commission’s (ALRC’s) 2014 report Serious Invasions of Privacy in the Digital Era.

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

The Government agrees to this recommendation.

The Government amended the Bill to expressly extend the exemption for journalists and associated persons to persons publishing, re-publishing or distributing journalistic material prepared by a journalist. This will ensure that persons facilitating journalism are covered by the exemption.

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

The Government agrees to this recommendation.

The Government amended Schedule 2 of the Bill to clarify that journalistic material includes editorial content, where the editorial content relates to news, current affairs or a documentary. This will address any ambiguity around whether editorial content is properly considered journalistic 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.

The Government agrees to this recommendation.

The Government amended the Bill to clarify that the power conferred on courts to issue an injunction is not limited to interim injunctions. Courts may also provide interlocutory and final injunctions as appropriate.