Landmark Privacy Act Review report released

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The Albanese Government has today released the report of the Attorney-General’s Department’s review of the Privacy Act 1988.

Strong privacy laws are essential to Australians’ trust and confidence in the digital economy and digital services provided by governments and industry.

However, the Privacy Act has not kept pace with the changes in the digital world. The large-scale data breaches of 2022 were distressing for millions of Australians, with sensitive personal information being exposed to the risk of identity fraud and scams.

The proposed reforms are aimed at strengthening the protection of personal information and the control individuals have over their information. Stronger privacy protections would support digital innovation and enhance Australia’s reputation as a trusted trading partner.

What information should be protected and who should protect it?

There is uncertainty about what information should be protected in accordance with the Privacy Act. Privacy risks arise out of a broad range of information relating to individuals as a result of digital technologies.

Current exemptions from the Act require recalibration to address contemporary privacy risks and meet current community expectations. Greater flexibility in the Privacy Act would enable it to respond to a broader range of circumstances, including emergency situations.

The proposals would:

  • recognise the public interest to society of protecting individuals’ privacy
  • clarify what information should be protected under the Privacy Act
  • ensure de-identified information is protected from misuse
  • require risks associated with holding and using information relating to individuals to be considered and protections applied accordingly
  • regulate ‘targeting’ of individuals based on information which relates to them but that may not uniquely identify them
  • enable privacy codes to be made by the Information Commissioner in certain circumstances
  • ensure risks to privacy resulting from the small business, employee records, political and journalism exemptions are addressed in a proportionate and practical way.

What privacy protections should apply?

Entities should take appropriate responsibility for ensuring that their information handling practices are fair and not harmful. There should be greater protections for personal information before it is used in ways which have high privacy risks. Individuals need more transparency about what is being done with their information and more control over what happens with it.

The proposals would:

  • improve the quality of information available to individuals about how their information is collected and used to ensure individuals make informed and genuine choices
  • require entities to take appropriate responsibility for handling personal information fairly and reasonably
  • require entities to identify and mitigate risks before engaging in high privacy risk practices
  • strengthen privacy protections for children and people experiencing vulnerability
  • improve individuals’ control over their personal information, including through a right to seek erasure of personal information
  • give individuals more transparency and control over direct marketing, targeting and sale of their personal information
  • strengthen the requirement on entities to keep personal information secure and destroy or de-identify it when it is no longer needed
  • facilitate overseas transfers of personal information whilst ensuring that it is properly protected.

How should breaches of privacy be enforced?

Enforcement of privacy obligations needs to be strengthened. Individuals have limited ways to take action when their privacy has been breached, including for serious invasions of privacy not covered by the Privacy Act.

The Notifiable Data Breaches scheme should be strengthened and streamlined with other mandatory reporting schemes. Entities would benefit from reduced regulatory complexity between different privacy frameworks.

The proposals would:

  • equip the Regulator with more options to enforce privacy breaches
  • enhance the Regulator’s ability to proactively identify and address privacy breaches
  • provide the Courts with enhanced powers to make orders against entities that have breached their privacy obligations
  • provide new pathways for individuals to seek redress in the Courts for privacy breaches, including through a new tort for serious invasions of privacy
  • improve how entities respond when a serious data breach occurs and simplify reporting processes for entities
  • reduce regulatory complexity by working with states and territories to harmonise key aspects of privacy laws

The Government is now seeking feedback on the 116 proposals in this report before deciding what further steps to take. Submissions on the report are due on 31 March 2023. For further information, please visit the Attorney-General’s Department website.