Submission to the Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the Privacy and Other Legislation Amendment Bill 2024

We made a submission to the Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the Privacy and Other Legislation Amendment Bill 2024.

This follows submissions we have made at multiple stages of the Government’s lengthy review process examining the Privacy Act 1988 (Cth) (Privacy Act) in 2020, 2021 and 2023.

This submission welcomes the introduction of the Bill to implement some of the recommendations of the Privacy Act Review Report 2023 (Review Report), which would represent the first broad and meaningful reform to the Privacy Act in decades. In particular, we welcome the proposed new statutory tort for serious invasions of privacy contained in Schedule 2 of the Bill which we strongly advocated for throughout the review process. 

However, our submission focuses on important amendments that should be made to improve the utility and efficacy of the statutory tort. These include:

• adding an additional factor to be considered as part of the test of reasonable expectation of privacy, being the extent to which a plaintiff is in a position of vulnerability;
• extending the tort beyond intentional or reckless invasions of privacy to cover negligent invasions of privacy, at least in respect of actions against government entities or corporations;
• ensuring the onus of establishing the public interest in privacy should not be placed on applicants; 
• removing the general exemption for journalism to recognise the potential for invasive conduct that is unreasonable or disproportionate and instead providing a public interest defence that protects journalistic freedom; and 
• limiting broad exemptions relating to law enforcement activities, to only exempt reasonably necessary and lawful activities.

We note the Bill leaves a number of significant issues unaddressed. We understand the Bill to be only the first tranche of the intended reforms and urge the government to commit to implementing additional reforms without delay. Our submission highlights the need for the following measures as a priority:

• The introduction of an objective ‘fair and reasonable test’ to require that the collection, use and disclosure of personal information must be fair and reasonable in the circumstances.
• Amendments to the definitions of ‘personal information’ and ‘collect’, and the introduction of a definition of ‘consent’.
• The introduction of a direct right of action to litigate a claim for breach of privacy under the Privacy Act.