Andrew McLachlan (SA, Deputy-President) | Link to this | Hansard source

I will now deal with the Privacy and Other Legislation Amendment Bill 2024, first dealing with the second reading amendments circulated by the opposition. The question is that the opposition amendments on sheets 3163 and 3227 be agreed to.

Opposition's circulated amendments—

SHEET 3163

At the end of the motion, add ", but the Senate notes that:

(a) this bill inappropriately consolidates 3 separate and distinct matters into a single bill, hindering the Senate in expressing its view on distinct matters about which opinions may reasonably differ;

(b) the Government decided not to release any cost-benefit or impact analysis of this legislation, hindering the Senate in understanding the effects of the proposed changes;

(c) despite requests from multiple stakeholders and the highly technical nature of the legislation, the Government decided not to conduct an exposure draft process, preventing those affected from understanding the impact of the legislation before it was introduced into the Parliament;

(d) the Government provided inadequate time for inquiry into the legislation, preventing those affected—including critical stakeholders who are directly affected—from properly scrutinising the legislation; and

(e) these basic failures of process prevent the Senate from carrying out its democratic function of scrutinising legislation and are inconsistent with the Government's own commitment to transparency".

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SHEET 3227

At the end of the motion, add ", but the Senate notes that both the Coalition and Labor support doxxing reforms".

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

by leave—Could I have the minutes record that because we wanted an efficient process we didn't split those two, but the Greens do not support 3227.

Andrew McLachlan (SA, Deputy-President) | Link to this | Hansard source

Yes, it will be recorded that the Greens do not support 3227.

David Pocock (ACT, Independent) | Link to this | Hansard source

by leave—Please could I note my support for 3227.

Andrew McLachlan (SA, Deputy-President) | Link to this | Hansard source

It is noted. The question now is that the bill be now read a second time.

Question agreed to.

Bill read a second time.

I will now deal with the Committee of the Whole amendments, starting with amendments circulated by the government. I understand the minister has documents to table.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) | Link to this | Hansard source

I table an addendum to the explanatory memorandum relating to the Privacy and Other Legislation Amendment Bill 2024. The addendum responds to matters raised by the Scrutiny of Bills Committee and the Legal and Constitutional Affairs Legislation Committee. I also table a supplementary explanatory memorandum relating to government amendments to be moved to this bill.

Andrew McLachlan (SA, Deputy-President) | Link to this | Hansard source

We come to sheet RZ120.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) | Link to this | Hansard source

Could I ask that amendments on sheet RZ120 be separated and put separately? So can amendments (1) to (14) be put separately to amendments (15) to (35)?

Andrew McLachlan (SA, Deputy-President) | Link to this | Hansard source

So that the chamber is aware, I'll be splitting the question on sheet RZ120. I'll be putting the first question, that the government amendments (1) to (14) on sheet RZ120 be agreed to, and then I will be going to amendments (15) to (35). Is everyone clear? I put the question that government amendments (1) to (14) on sheet RZ120 be agreed to.

Government's circulated amendments—

(1) Clause 2, page 2 (table item 1, column 1), omit "Sections 1 to 3", substitute "Sections 1 to 4".

(2) Page 3 (after line 8), after clause 3, insert:

4 Review of operation of amendments made by Schedule 3

(1) The Minister must cause an independent review to be undertaken of the operation of the amendments made by Schedule 3 to this Act.

(2) The review must commence as soon as practicable after the end of the period of 24 months starting at the commencement of that Schedule.

(3) The persons who undertake the review must give the Minister a written report of the review within 6 months of the commencement of the review.

(4) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.

(3) Schedule 1, item 13, page 9 (line 19), at the end of paragraph 80KA(2)(b), add ", the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation".

(4) Schedule 1, item 32, page 16 (after line 7), after subparagraph 26GC(8)(a)(ii), insert:

(iia) industry organisations or bodies representing the interests of one or more entities that may potentially be bound by the Code;

(5) Schedule 1, item 32, page 16 (line 17), omit "40 days", substitute "60 days".

(6) Schedule 1, item 43, page 22 (line 26), at the end of paragraph 26X(3)(b), add ", the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation".

(7) Schedule 1, item 56, page 34 (line 3), after "notices", insert "or compliance notices".

(8) Schedule 1, item 57, page 35 (line 20), after "notices", insert "or compliance notices".

(9) Schedule 1, item 57, page 35 (line 21), omit "information).", substitute "information);".

(10) Schedule 1, item 57, page 35 (after line 21), after paragraph 80UB(1)(b), insert:

(c) subsection 80UC(4) (failure to comply with a compliance notice).

(11) Schedule 1, item 57, page 35 (line 28), after "or (2)", insert ", or 80UC(4),".

(12) Schedule 1, item 57, page 36 (line 3), after "or (2)", insert ", or 80UC(4),".

(13) Schedule 1, page 36 (after line 7), after item 57, insert:

57A After Division 1A of Part VIB

Insert:

Division 1B — Compliance notices

80UC Compliance notices

Giving a compliance notice

(1) Any of the following persons may give an entity a notice if the person reasonably believes that the entity has contravened subsection 13K(1) or (2) (civil penalty provision for which infringement notices or compliance notices can be issued):

(a) the Commissioner;

(b) a member of the staff of the Commissioner who holds, or is acting in, an office or position that is equivalent to an SES employee.

Note: The notice may be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901.

(2) The notice must:

(a) set out the name of the entity to whom the notice is given; and

(b) set out details of the contravention; and

(c) specify either or both of the following:

(i) action the entity must take, or refrain from taking, within a reasonable period specified in the notice, to address the contravention;

(ii) steps the entity must take, within a reasonable period specified in the notice, to ensure that the conduct constituting the contravention is not repeated or continued; and

(d) explain that a failure to comply with the notice may contravene a civil penalty provision; and

(e) explain that the entity may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for a review of the notice on either or both of the following grounds:

(i) the entity has not committed the contravention set out in the notice;

(ii) the notice does not comply with this subsection.

(3) The notice may also require the entity to produce, within a reasonable period specified in the notice, reasonable evidence of compliance with the notice.

Entity must comply with compliance notice

(4) An entity contravenes this subsection if:

(a) the entity is given a notice under subsection (1); and

(b) the entity fails to comply with the notice.

(5) Subsection (4) is a civil penalty provision.

Note: Section 80U deals with civil penalty provisions in this Act.

(6) The amount of the penalty payable by a person in respect of a contravention of subsection (4) must not exceed 200 penalty units.

Effect of complying with a compliance notice

(7) An entity that complies with a notice given under subsection (1) in relation to a contravention of subsection 13K(1) or (2) is not taken by that compliance:

(a) to have admitted to contravening that subsection; or

(b) to have been found to have contravened that subsection.

Relationship with civil penalty provisions

(8) The Commissioner must not apply for an order under Part 4 of the Regulatory Powers Act in relation to a contravention of subsection 13G(1), 13H(1) or 13K(1) or (2) of this Act constituted by particular conduct engaged in by an entity, if:

(a) the entity has been given a notice under subsection (1) of this section in relation to a contravention constituted by the same conduct; and

(b) either of the following subparagraphs applies:

(i) the notice has not been withdrawn, and the entity has complied with the notice;

(ii) the entity has made an application under section 80UD of this Act in relation to the notice and the application has not been completely dealt with.

Relationship with infringement notices

(9) A notice must not be given under subsection (1) to an entity in relation to a contravention if:

(a) the entity has been given an infringement notice under Part 5 of the Regulatory Powers Act in relation to the contravention; and

(b) the infringement notice has not been withdrawn.

(10) An infringement notice must not be given to an entity under Part 5 of the Regulatory Powers Act in relation to a contravention of subsection 13K(1) or (2) of this Act if the entity has been given a notice under subsection (1) of this section, in relation to the contravention, that has not been withdrawn or cancelled.

Relationship with enforceable undertakings

(11) A notice must not be given under subsection (1) to an entity in relation to a contravention if:

(a) the Commissioner has accepted an undertaking from the entity under Part 6 of the Regulatory Powers Act in relation to the contravention; and

(b) the undertaking has not been withdrawn or cancelled.

80UD Review of compliance notices

(1) An entity that has been given a notice under subsection 80UC(1) may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for a review of the notice on either or both of the following grounds:

(a) the entity has not committed the contravention set out in the notice;

(b) the notice does not comply with subsection 80UC(2).

(2) At any time after the application has been made, the court may stay the operation of the notice on the terms and conditions that the court considers appropriate.

(3) The court may confirm, cancel or vary the notice after reviewing it.

(14) Schedule 1, item 58, page 36 (line 12), omit "and 13K", substitute ", 13K, 80UC and 80UD".

Question agreed to.

The question is that government amendments (15) to (35) on sheet RZ120 be agreed to.

Government's circulated amendments—

(15) Schedule 2, item 10, page 61 (line 20), after "intelligence agencies", insert "and law enforcement bodies".

(16) Schedule 2, item 10, page 61 (line 21), after "agencies", insert "or bodies".

(17) Schedule 2, item 10, page 61 (line 22), after "agencies", insert "or bodies,".

(18) Schedule 2, item 10, page 61 (lines 23 and 24), omit "Journalists, certain persons associated with journalists and enforcement bodies", substitute "Journalists and certain other persons".

(19) Schedule 2, item 10, page 61 (line 25), omit "interim".

(20) Schedule 2, item 10, page 62 (line 1), omit "The Minister may make rules for the purposes of this Schedule.".

(21) Schedule 2, item 10, page 63 (before line 27), before the definition of Australian Geospatial-Intelligence Organisation in clause 6, insert:

agency has the meaning given by subsection 6(1) of this Act.

ASIO affiliate has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

(22) Schedule 2, item 10, page 64 (lines 7 and 8), omit the definition of enforcement body in clause 6.

(23) Schedule 2, item 10, page 64 (lines 9 and 10), omit the definition of enforcement related activity in clause 6.

(24) Schedule 2, item 10, page 65 (after line 1), after the definition of journalistic materialin clause 6, insert:

law enforcement body means:

(a) the Australian Federal Police; or

(b) the National Anti-Corruption Commissioner; or

(c) the Australian Crime Commission; or

(d) a police force or service of a State or a Territory; or

(e) the New South Wales Crime Commission; or

(f) the Independent Commission Against Corruption of New South Wales; or

(g) the Law Enforcement Conduct Commission of New South Wales; or

(h) the Independent Broad-based Anti-corruption Commission of Victoria; or

(i) the Crime and Corruption Commission of Queensland; or

(j) the Corruption and Crime Commission of Western Australia; or

(k) the Independent Commissioner Against Corruption of South Australia.

(25) Schedule 2, item 10, page 65 (after line 5), after the definition of reckless in clause 6, insert:

staff member of an agency or State or Territory authority(including an intelligence agency or a law enforcement body) includes:

(a) the head (however described) of the agencyor authority, or another person who holds an office or appointment in relation to the agencyor authority; and

(b) a person who is otherwise a member of the staff of the agency or authority(whether an employee of the agency or authority, a consultant or contractor to the agency or authority, or a person who is made available to perform services for the agency or authority by another agency or authority, or another person); and

(c) in the case of the Australian Federal Police—a member or special member of the Australian Federal Police; and

(d) in the case of a police force of a State or Territory—a member (however described) of that police force.

State or Territory authority has the meaning given by section 6C of this Act.

(26) Schedule 2, item 10, page 65 (line 25), at the end of subclause 7(1), add:

; and (e) the public interest in the plaintiff's privacy outweighed any countervailing public interest.

(27) Schedule 2, item 10, page 65 (line 27) to page 66 (line 10), omit subclauses 7(3) and (4), substitute:

Countervailing public interest

(3) Without limiting what constitutes a countervailing public interest, any of the following matters of public interest may constitute a countervailing public interest:

(a) freedom of expression, including political communication and artistic expression;

(b) freedom of the media;

(c) the proper administration of government;

(d) open justice;

(e) public health and safety;

(f) national security;

(g) the prevention and detection of crime and fraud.

(28) Schedule 2, item 10, page 68 (after line 10), after clause 8, insert:

8A Determination whether exemption applies

(1) The court may, at any stage of the proceedings, determine whether an exemption in Part 3 applies in relation to the invasion of privacy.

(2) The court may make the determination on application of a party to the proceedings or on its own motion.

(3) If a party to the proceedings applies for a determination under this clause before the trial for the proceedings commences, the court is to make the determination as soon as practicable, and before the trial commences, unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial).

(4) This clause does not limit any powers that the court has apart from this clause.

(29) Schedule 2, item 10, page 68 (line 11), omit the heading to clause 9, substitute:

9 Injunctions

(30) Schedule 2, item 10, page 71 (line 15), after "employer of", insert ", or a person engaging,".

(31) Schedule 2, item 10, page 71 (lines 16 and 17), omit paragraph 15(1)(c), substitute:

(c) a person assisting a journalist who is employed or engaged by:

(i) the journalist's employer; or

(ii) a person engaging the journalist;

(32) Schedule 2, item 10, page 71 (after line 19), after subclause 15(1), insert:

(1A) This Schedule does not apply to an invasion of privacy to the extent that the invasion of privacy involves the publication or distribution of journalistic material that was prepared for publication by a journalist.

(33) Schedule 2, item 10, page 71 (line 30), at the end of subclause 15(3), add:

; or (c) consists of editorial content relating to news, current affairs or a documentary.

(34) Schedule 2, item 10, page 72 (lines 3 to 8), omit clause 16, substitute:

16 Agencies and State and Territory authorities (other than intelligence agencies and law enforcement bodies)

This Schedule does not apply to an invasion of an individual's privacy by an agency or a State or Territory authority (other than an intelligence agency or a law enforcement body) to the extent that the agency or authority invades the individual's privacy, in good faith:

(a) in the performance or purported performance of a function of the agencyor authority; or

(b) in the exercise or purported exercise of a power of the agency or authority.

16A Staff members of agencies or State and Territory authorities (other than intelligence agencies and law enforcement bodies)

This Schedule does not apply to an invasion of an individual's privacy by a staff member of an agency or a State or Territory authority (other than a staff member of an intelligence agency or a law enforcement body) to the extent that the staff member invades the individual's privacy, in good faith:

(a) in the performance or purported performance of a function of the agencyor authority; or

(b) in the exercise or purported exercise of a power of the agency or authority.

16B Law enforcement bodies

This Schedule does not apply to:

(a) an invasion of privacy by a law enforcement body; or

(b) an invasion of privacy by a person who is a staff member of a law enforcement body in the performance of the person's duties, powers or functions as such a staff member; or

(c) an invasion of privacy to the extent that it involves a disclosure of information to a law enforcement body; or

(d) an invasion of privacy to the extent that it involves information that was disclosed by a law enforcement body.

(35) Schedule 2, item 10, page 72 (after line 11), after paragraph 17(a), insert:

(aa) an invasion of privacy by a person who is an ASIO affiliate, or an agent or staff member of an intelligence agency, in the performance of:

(i) if the person is an ASIO affiliate—functions or services for the Australian Security Intelligence Organisation; or

(ii) otherwise—the person's duties, powers or functions as such an agent or staff member; or

Andrew McLachlan (SA, Deputy-President) | Link to this | Hansard source

I will now deal with Committee of the Whole amendments circulated by the opposition. We are coming to sheet 3144, amendment (2). The question before the Senate is that schedule 2 stand as printed.

The opposition opposed schedule 2 in the following terms—

(2) Schedule 2, page 59 (line 1) to page 74 (line 24), to be opposed.

Andrew McLachlan (SA, Deputy-President) | Link to this | Hansard source

This means that the opposition amendment on sheet 3144 cannot be moved. We are now on sheets 3016, 3017 and 3018 in the name of the Australian Greens. The question is that the Australian Greens amendments on sheets 3016 revised, 3017 revised and 3018 be agreed to.

Australian Greens' circulated amendments—

SHEET 3016 REVISED

(1) Clause 2, page 2 (after table item 7), insert:

(2) Schedule 1, page 58 (after line 27), at the end of the Schedule, add:

Part 17 — Meaning of personal information

Privacy Act 1988

92 Subsection 6(1) (definition of de-identified )

Omit "is no longer about an identified individual", substitute "no longer relates to an identified individual".

93 Subsection 6(1) (definition of personal information )

Omit "about an identified individual", substitute "that relates to an identified individual".

94 Subsection 6(1)

Insert:

reasonably identifiable: an individual is reasonably identifiable if the individual is capable of being distinguished from other individuals, even if the identity of the individual is not known.

_____

SHEET 3017 REVISED

(1) Clause 2, page 2 (after table item 7), insert:

(2) Schedule 1, page 58 (after line 27), at the end of the Schedule, add:

Part 16 — Meaning of consent

Privacy Act 1988

90 Subsection 6(1) (definition of consent )

Repeal the definition, substitute:

consent means:

(a) when used in relation to the collection, use or disclosure of information that is about an individual—consent that is in accordance with subsection (12); and

(b) otherwise—express consent or implied consent.

90A At the end of section 6

Add:

(12) For the purposes of paragraph (a) of the definition of consent in subsection (1):

(a) the consent must be:

(i) voluntary; and

(ii) informed; and

(iii) current; and

(iv) specific; and

(v) unambiguous; and

(b) the individual must be able to withdraw the consent in a manner that is easily accessible to the individual.

91 Application of amendment

The amendment of the Privacy Act 1988 made by this Part applies in relation to the collection, use or disclosure of information on or after the commencement of this item.

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SHEET 3018

(1) Clause 2, page 2 (after table item 7), insert:

(2) Schedule 1, page 58 (after line 27), at the end of the Schedule, add:

Part 18 — Fair and reasonable test for collection, use or disclosure of personal information

Privacy Act 1988

95 At the end of clause 3 of Schedule 1

Add:

Collection must be fair and reasonable

3.8 An APP entity must not collect personal information about an individual unless the collection is fair and reasonable in the circumstances.

3.9 Subclause 3.8 applies:

(a) despite any other provision of this Act; and

(b) regardless of whether the individual has consented to the collection.

96 At the end of clause 6 of Schedule 1

Add:

Use or disclosure must be fair and reasonable

6.8 An APP entity must not use or disclose personal information about an individual unless the use or disclosure is fair and reasonable in the circumstances.

6.9 Subclause 6.8 applies:

(a) despite any other provision of this Act; and

(b) regardless of whether the individual has consented to the use or disclosure of the information.

97 Application of amendments

The amendments of the Privacy Act 1988 made by this Part apply in relation to the collection, use or disclosure of information on or after the commencement of this item.