Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

I thank senators for their contribution to the debate on the Privacy Legislation Amendment (Emergencies and Disasters) Bill 2006. This is an important bill. It is important because it amends the Privacy Act and makes consequential amendments to the Australian Security Intelligence Organisation Act.

The bill enhances information exchange between Australian government agencies, state and territory authorities, private sector organisations, non-government organisations and other bodies in an emergency or disaster situation. We have seen that happen with recent events, and I will not go into those at length; other speakers have canvassed the Bali bombings, the tsunami disaster and other emergencies which have required an immediate response from Australian authorities. I just want to say at this point that the response is required in a substantial form, not just for cosmetic reasons, as some might say. In fact I would totally reject that. When you have a disaster, you need to respond in a whole-of-government sense and you need to have that exchange of information between the agencies.

How does this interact with privacy in the privacy legislation? It is interesting. When you look at the evidence given to the Senate Standing Committee on Legal and Constitutional Affairs, which looked into this bill, you see that the Office of the Privacy Commissioner considered the issue of balancing the flow of information and privacy considerations during times of large-scale emergencies. It noted:

The scale and gravity of large scale emergencies have tested the application of the Privacy Act and raised questions as to how privacy protection should operate in such situations. The Privacy Act received criticism in the media after the tsunami disaster for lacking commonsense and for being unable to anticipate and cope with the extent of the tsunami disaster.

That came from the Office of the Privacy Commissioner. It was a concern that was echoed in the evidence given to the Senate Standing Committee on Legal and Constitutional Affairs—that is, we need to do something to address this need for exchange of information during an emergency. That is precisely what we are doing here.

I commend the Senate Standing Committee on Legal and Constitutional Affairs for its work. In fact, as a result of that report the government will be putting forward two amendments in the committee stage. I will not go into those details; I will leave that for the committee. But there are a number of issues that were raised by Senator Ludwig and Senator Bartlett, and I feel I need to address those in my speech in reply.

Senator Ludwig talked of the lack of notice given in relation to these amendments. As I understand it, the Senate committee reported last Thursday. The government then obtained approval for amendments to be made. They were circulated yesterday. I understand the Attorney-General spoke with the shadow Attorney-General’s office in relation to that, but that could not be done until policy approval had been obtained. What we had was a fairly quick consideration of the committee report, a response from the government and communication of that to the opposition.

Senator Ludwig also inquired as to the way we were couching this amendment in relation to the legislation that is in existence. Consideration was given to amending the Information Privacy Principles and the National Privacy Principles in the Privacy Act, as these principles govern the collection, storage, use and disclosure of personal information. However, the proposed amendments do not lend themselves to a simple amendment of these IPPs and NPPs, and the government thought it would be much clearer if a new part VIA was inserted in the Privacy Act to comprehensively deal with information exchange in an emergency or disaster situation. That deals with the point that Senator Ludwig makes as to how we have framed this amendment. We believe it is much clearer to have a new part VIA inserted in the act.

Senator Bartlett queried why this bill is needed when the Privacy Act already has exemptions which allow for disclosure of information in an emergency or disaster situation. Certainly disclosure of personal information in an emergency or disaster situation is permitted, but only if consistent with the Privacy Act. Some agencies and organisations take an unduly restrictive view of this; certainly that has impeded them in relation to the exchange of information in a disaster or an emergency situation. In an emergency, there simply may not be the time to resolve any potential privacy issues and apply the Privacy Act on the case-by-case basis that is required.

Of course, we have already gone over the fact that this delay in the exchange of information and in the response by government authorities, which is so important, can cause trauma to the families of victims. We believe these amendments provide a clear and certain legal basis for the collection, use and disclosure of personal information about deceased, injured and missing Australian individuals in an emergency or disaster situation. This gives a clear direction to those authorities, which is so needed in these events.

The other point raised by Senator Bartlett was the question that we were in some way displacing the Privacy Act or doing away with it. This bill provides for an emergency declaration; it will not displace the usual operation of the Privacy Act. It is a mechanism only for the emergency response for the whole of government, and the proposal to use this declaration is very much one which can accommodate the urgent needs of the situation at hand. We would submit that the public interest determination which can be used in the Privacy Act is too slow. It involves consultation and would simply be unwieldy in a situation where you needed that immediate response. We believe the emergency declaration, as such, is preferable over the current regime but, in other respects, the usual operation of the Privacy Act is not dispelled.

Senator Bartlett also asked why we do not adopt existing declaration mechanisms in other legislation, such as the Crimes Act, instead of creating this new emergency declaration mechanism. Of course there are a number of other mechanisms available in other pieces of legislation. But what senators have to remember is that this is related to an emergency situation, or a disaster, as it applies vis-a-vis privacy considerations. Those other determinations or declaration mechanisms that Senator Bartlett referred to involve different trigger mechanisms and different situations. It really would become somewhat of a muddle if we did not have a specific regime which applied to disasters and emergency situations as they related to the Privacy Act.

That deals with the points I wanted to cover in the speech in reply to the points raised by senators opposite. This bill will assist agencies and organisations in applying the Privacy Act less restrictively and with greater confidence, but it will also maintain those safeguards, which are so important. As I say, the government has two amendments in the committee stage which will reflect recommendations made by the Senate Standing Committee on Legal and Constitutional Affairs. I commend this bill to the Senate.

Question agreed to.

Bill read a second time.