Senate debates

Tuesday, 27 November 2012

Bills

Privacy Amendment (Enhancing Privacy Protection) Bill 2012; In Committee

4:22 pm

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Hansard source

I am happy to do that as well. By leave—move government amendments (1) to (16), (18) to 26) and (28) to (40) on sheet BP262 together:

(1) Clause 2, page 2 (table item 2), omit "9 months", substitute "15 months".

(2) Clause 2, pages 2 to 3 (table items 3 to 9), omit the table items, substitute:

(3) Clause 2, page 3 (table item 11), omit "9 months", substitute "15 months".

(4) Clause 2, pages 3 to 4 (table items 13 to 15), omit the table items, substitute:

(5) Clause 2, page 4 (table item 17), omit "9 months", substitute "15 months".

(6) Clause 2, page 4 (table item 19), omit "9 months", substitute "15 months".

(7) Schedule 1, item 88, page 23 (lines 4 and 5), omit the item, substitute:

88 Subsection 95(1)

  After "privacy", insert "by agencies".

(8) Schedule 1, item 104, page 29 (line 6), at the end of paragraph 2.2(b) of Australian Privacy Principle 2, add "or who have used a pseudonym".

(9) Schedule 1, item 104, page 30 (after line 24), at the end of Australian Privacy Principle 3.4, add:

Note: For permitted general situation, see section 16A. For permitted health situation, see section 16B.

(10) Schedule 1, item 104, page 34 (after line 4), at the end of Australian Privacy Principle 6.2, add:

Note: For permitted general situation, see section 16A. For permitted health situation, see section 16B.

(11) Schedule 1, item 104, page 35 (line 7), omit the heading to Australian Privacy Principle 7.1, substitute:

Direct marketing

(12) Schedule 1, item 104, page 39 (after line 3), at the end of Australian Privacy Principle 8.2, add:

Note: For permitted general situation, see section 16A.

(13) Schedule 1, item 104, page 39 (line 34), omit "Note", substitute "Note 1".

(14) Schedule 1, item 104, page 39 (after line 35), at the end of Australian Privacy Principle 9.2, add:

Note 2: For permitted general situation, see section 16A.

(15) Schedule 2, item 39, page 52 (lines 24 and 25), omit "an act relating to the collection of", substitute "the act of collecting".

(16) Schedule 2, item 69, page 63 (line 12), at the end of subsection 6L(3), add "or a person prescribed by the regulations".

(18) Schedule 2, item 72, page 84 (lines 2 and 3), omit "the assessment of the credit worthiness of individuals", substitute "credit".

(19) Schedule 2, item 72, page 84 (line 10), omit "the assessment of the credit worthiness of individuals", substitute "credit".

(20) Schedule 2, item 72, page 84 (lines 15 and 16), omit "the assessment of the credit worthiness of individuals", substitute "credit".

(21) Schedule 2, item 72, page 100 (line 11), omit "complaint.", substitute "complaint;".

(22) Schedule 2, item 72, page 100 (after line 11), at the end of subsection 21B(4), add:

(i) whether the provider is likely to disclose credit information or credit eligibility information to entities that do not have an Australian link;

(j) if the provider is likely to disclose credit information or credit eligibility information to such entities—the countries in which those entities are likely to be located if it is practicable to specify those countries in the policy.

(23) Schedule 2, item 72, page 101 (line 25), omit "complaint.", substitute "complaint;".

(24) Schedule 2, item 72, page 101 (after line 25), at the end of subsection 21C(3), add:

(e) whether the provider is likely to disclose credit information or credit eligibility information to entities that do not have an Australian link;

(f) if the provider is likely to disclose credit information or credit eligibility information to such entities—the countries in which those entities are likely to be located if it is practicable to specify those countries in the credit reporting policy.(25) Schedule 2, item 72, page 102 (line 3), after "scheme", insert "or is prescribed by the regulations".

(26) Schedule 2, item 72, page 102 (line 22), after "licensee", insert "or is prescribed by the regulations".

(28) Schedule 2, item 72, page 105 (line 12), omit "and the body corporate has an Australian link".

(29) Schedule 2, item 72, page 105 (lines 13 to 17), omit paragraph 21G(3)(c), substitute:

(c) the disclosure is to:

  (i) a person for the purpose of processing an application for credit made to the credit provider; or

  (ii) a person who manages credit provided by the credit provider for use in managing that credit; or

(30) Schedule 2, item 72, page 105 (after line 32), at the end of subsection 21G(3), add:

Note: See section 21NA for additional rules about the disclosure of credit eligibility information under paragraph (3)(b) or (c).

(31) Schedule 2, item 72, page 106 (lines 7 to 10), omit paragraphs 21G(5)(c) and (d), substitute:

(c) the credit provider discloses the credit eligibility information under paragraph (3)(b), (c), (e) or (f); or

(d) the credit provider discloses the credit eligibility information under paragraph (3)(d) to an enforcement body.

(32) Schedule 2, item 72, page 111 (line 18), omit paragraph 21M(1)(b).

(33) Schedule 2, item 72, page 111 (lines 19 and 20), omit "for the purpose of the collection of payments", substitute "to the person or body for the primary purpose of the person or body collecting payments".

(34) Schedule 2, item 72, page 111 (after line 26), at the end of subsection 21M(1), add:

Note: See section 21NA for additional rules about the disclosure of credit eligibility information under this subsection.

(35) Schedule 2, item 72, page 113 (after line 9), after section 21N, insert:

21NA Disclosures to certain persons and bodies that do not have an Australian link

   Related bodies corporate and credit managers etc.

(1) Before a credit provider discloses credit eligibility information under paragraph 21G(3)(b) or (c) to a related body corporate, or person, that does not have an Australian link, the provider must take such steps as are reasonable in the circumstances to ensure that the body or person does not breach the following provisions (the relevant provisions) in relation to the information:

  (a) for a disclosure under paragraph 21G(3)(b)—section 22D;

  (b) for a disclosure under paragraph 21G(3)(c)—section 22E;

  (c) in both cases—the Australian Privacy Principles (other than Australian Privacy Principles 1, 6, 7, 8 and 9.2).

(2) If:

  (a) a credit provider discloses credit eligibility information under paragraph 21G(3)(b) or (c) to a related body corporate, or person, that does not have an Australian link; and

  (b) the relevant provisions do not apply, under this Act, to an act done, or a practice engaged in, by the body or person in relation to the information; and

  (c) the body or person does an act, or engages in a practice, in relation to the information that would be a breach of the relevant provisions if those provisions applied to the act or practice;

the act done, or the practice engaged in, by the body or person is taken, for the purposes of this Act, to have been done, or engaged in, by the provider and to be a breach of those provisions by the provider.

Debt collectors

(3) Before a credit provider discloses credit eligibility information under subsection 21M(1) to a person or body that does not have an Australian link, the provider must take such steps as are reasonable in the circumstances to ensure that the person or body does not breach the Australian Privacy Principles (other than Australian Privacy Principle 1) in relation to the information.

(4) If:

  (a) a credit provider discloses credit eligibility information under subsection 21M(1) to a person or body that does not have an Australian link; and

  (b) the Australian Privacy Principles do not apply, under this Act, to an act done, or a practice engaged in, by the person or body in relation to the information; and

  (c) the person or body does an act, or engages in a practice, in relation to the information that would be a breach of the Australian Privacy Principles (other than Australian Privacy Principle 1) if those Australian Privacy Principles applied to the act or practice;

the act done, or the practice engaged in, by the person or body is taken, for the purposes of this Act, to have been done, or engaged in, by the provider and to be a breach of those Australian Privacy Principles by the provider.

(36) Schedule 2, item 72, page 125 (line 20), at the end of the heading to section 22E, add "etc.".

(37) Schedule 2, item 72, page 125 (lines 26 and 27), omit "for use in managing credit provided by the provider".

(38) Schedule 2, item 72, page 126 (lines 3 and 4), omit "in managing credit provided by the credit provider", substitute "for the purpose for which it was disclosed to the person under paragraph 21G(3)(c)".

(39) Schedule 2, item 72, page 126 (lines 8 to 10), omit all the words from and including "information" to the end of subsection 22E(3), substitute:

information if:

  (a) the disclosure is to the credit provider; or

  (b) the disclosure is required or authorised by or under an Australian law or a court/tribunal order.

(40) Schedule 4, item 189, page 193 (after line 18), at the end of section 80Z, add:

Note: In determining the pecuniary penalty, the court must take into account all relevant matters including the matters mentioned in subsection 80W(6).

In dealing with these amendments, I may also touch on government amendments (17) and (27) on sheet BP262. I note that the addendum to the explanatory memorandum was tabled in the Senate on 22 November 2012. It addressed recommendations made by the Senate Legal and Constitutional Affairs Legislation Committee in its report on the bill, which was tabled on 26 September 2012. The government is introducing certain amendments to items in schedules 1, 2 and 4 of the bill. Many of these amendments, as I think I indicated in my second reading speech, respond to the recommendations of the committee report on the bill.

The amendments to schedule 1 of the bill respond to recommendations 1, 2 and 8 of the committee's report and will improve the effectiveness and operation of the proposed Australian Privacy Principles. These amendments are as follows: amendment (8), clarify the pseudonymity principle in Australian Privacy Principle 2; amendment (11), remove the word 'prohibition' from the subheading of APP 7, which deals with direct marketing, to more accurately reflect the content of the provisions; amendments (9), (10), (11), (12), (13) and (14) will add notes under those APPs that refer to permitted general situations and permitted health situations to provide useful cross-references to those meanings of those terms; and amendment (7) makes a minor amendment to the provisions dealing with medical research. The government will also expand the list of provisions that will be reviewed 12 months after commencement. The review commitment was given in response to a recommendation of the House of Representatives Standing Committee on Social Policy and Legal Affairs. As a result of discussions with the opposition, the government will add APP 7, which deals with direct marketing, to that list of matters to be reviewed.

The amendments to schedule 2 of the bill respond to recommendations 10 and 15 of the committee's report about the credit reporting provisions. The amendments to schedule 2 will also address a number of additional stakeholder concerns. These amendments are as follows. We will deal with amendment (27) shortly. Amendments (18), (19) and (20) broaden the identification provisions to permit research to be generally about credit. The Australian link requirement will be redrafted to ensure credit providers can continue to undertake various offshore processing activities in relation to credit eligibility information, clarify the scope of the managing credit and debt collection provisions, and make a number of related changes. We will deal with amendment (17) later. Amendments (16), (25) and (26) add regulation, making powers to allowed prescribed credit providers that are not licensees, such as Indigenous Business Australia, to access repayment history information, exempt and prescribe credit providers, such as IBA, from certain obligations to be a member of an external dispute resolution scheme and allow additional relay services that may be developed in the future to be exempt from the requirements to obtain prior written authorisation where the prescribed service is used to assist an individual and access seeker to communicate for the purpose of obtaining access to their credit reporting information.

Amendments (1) to (6) will extend the commencement period of the bill to 15 months after royal assent. This longer commencement period will ensure industry has sufficient time to make necessary changes to their systems and procedures. Amendment (40) will add a note to the civil penalty provisions in schedule 4 of the bill to clarify the matters that a court must consider in determining an appropriate penalty for multiple breaches of the act. That will ensure that a court will take into account all relevant circumstances in deciding on the total penalty to impose where there have been multiple breaches relating to the same conduct. In summary, we may be able to deal with any questions related to those issues that may have arisen, but I commend those amendments.

Before I conclude, it seems I could, by leave, add government amendment (17) on sheet BP262 to the government amendments, as it is a more efficient way of dealing with it, if there is no objection. I understand that there is not, but I seek leave to do that.

Leave granted.

I move government amendment (17) on sheet BP262:

(17) Schedule 2, item 72, page 77 (lines 7 and 8), omit all the words from and including "recipient" to and including "licensee", substitute:

recipient of the information is:

  (a) a credit provider who is a licensee or is prescribed by the regulations; or

  (b) a mortgage insurer.

Having moved that amendment, I will speak briefly on it. Amendment (17) permits credit reporting bodies to disclose repayment history information to mortgagee insurers.

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