Senate debates

Tuesday, 16 March 2010

Trade Practices Amendment (Australian Consumer Law) Bill 2009

In Committee

6:48 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | Hansard source

I move amendment (2) on sheet 5891:

(2)    Schedule 1, item 1, page 7 (after line 21), after section 4, insert:

4B  Unfair term—personal information

        (1)    Without limiting section 3, a term that enables, or has the effect of enabling, one party to transfer personal information about another party to a person outside Australia without that other party’s written, informed consent is taken to be an unfair term of a consumer contract.

        (2)    In this section:

personal information has the meaning given by section 6 of the Privacy Act 1988.

transfer, in relation to personal information, means communicate, send, trade or republish that information by any means to any person.

(3)    Schedule 2, item 18, page 31 (line 9), omit “(other than an award of damages)”.

(4)    Schedule 3, item 26, page 69 (line 4), omit “(other than an award of damages)”.

This amendment is quite simple. It will require banking institutions to obtain written, informed consent from customers before their personal information can be transferred to a person outside Australia. Currently, data, including credit card numbers, passport details, PINs, licence numbers, marital status, home address and employment details can be, and are, sent to offshore locations without a customer’s consent. This is a breach of privacy; it should be prohibited. I see this, as do many others, as a pretty fundamental contract term. It is inherently unfair for that information to be sent overseas in the absence of written consent.

Last October I jointly, along with the Finance Sector Union Australia, commissioned a survey which showed that 91 per cent of Australians say they would choose a bank that would not send their personal information overseas for processing. It was a nationwide survey. This survey also revealed that 83 per cent of people believe banks should be required to get written permission from a customer before sending their personal details overseas. The FSU is clearly right about this. More than 5,500 finance jobs have already been lost to cheaper overseas labour and with them have gone all these personal details. I think it is important for Australians to have the right to control who has access to their personal information. Banks should not be allowed to try and save a few bucks by jeopardising the privacy of millions of Australians. I applaud the FSU and the work that it has done in relation to this. This goes to an issue of the unfairness of not giving consumers the right to consent, or otherwise, to their information going overseas. I acknowledge that Senator Fielding has put up legislation in similar terms, and I applaud him for that. This is another way of trying to achieve the same thing. It is about consumers having that right. Not giving it to them is inherently unfair.

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