Coalition demands split of privacy package

The federal Opposition has accused the government of wedge tactics by bundling a right to sue with other privacy reforms and new doxxing laws, and is threatening to withhold its Senate vote unless the package is split.

The rift looms as another delay to the landmark reforms, which follow years of reviews and community consultation on Australian privacy law that has not kept pace with technology and global efforts.

Without the Opposition vote, the Albanese government will need to convince the Senate cross bench to vote for its bill or risk punting key changes beyond the next election.

On Thursday, a Labor dominated Senate committee recommended the passage of the Privacy and Other Legislation Amendment Bill 2024, subject to clarifying amendments.

But in additional comments from deputy chair and Liberal Senator Paul Scarr said the bill’s proposed statutory tort – a right to sue – for serious breaches of privacy must be “excised from the bill” and face more public consultation.

Senator Scarr said that the bill lumps together three “disparate matters” in the tort, other privacy reforms and new doxxing laws, warning the bundling is poor practice “if the goal is not to ‘wedge’ political opponents”.

His concerns about an undercooked privacy tort mirrors warnings DIGI, the industry group representing online platforms.

DIGI told the inquiry the scope of the new right to sue is unclear and claimed it could cause unintended consequences because it is not “harmonised with existing Australian laws”.

Industry employer association the Ai Group claimed the tort could open the “the floodgates to a litigious culture” and strain the court system.

Privacy advocates also flagged issues with the tort because it could mean access to the right to sue is restricted to wealthy people.

“It is my strong view that it would be imprudent for the Senate [to] attempt to resolve the issues and pass the provisions into law in an abbreviated period of time,” Senator Scarr said.

Senator Scarr also called for the release of a secret cost-benefit analysis of proposed privacy reforms undertaken by economic consultancy ACIL Allen. He said the Senate should have access to “all relevant analysis…prior to voting on the bill”.

The analysis was pursued by Greens Senator David Shoebridge during in-person inquiries, but was rebuffed by the Attorney-General’s Department on cabinet confidence grounds.

Senator Shoebridge’s additional comments focused on the failure of the bill to implement the most significant privacy reforms recommended in the Attorney-General’s Department’s review, completed in 2022.

He said the existing definition of personal information — which won’t be updated until the second tranche of reforms —  leaves out much that “we know is being commercialised and weaponised against people right now”.

The current bill also won’t update the definition of consent or implement a critical fair and reasonable test for the handling of personal information.

Senator Shoebridge pointed to Attorney Generals’ Department evidence that the first tranche of privacy act reforms focus “largely things that don’t directly and significantly impact on regulated entities”.

“Because of this decision by the government to not ‘significantly impact on regulated entities’, this bill is a serious missed opportunity,” Senator Shoebridge said.

The Greens Senator also demanded the government produce a roadmap for the entire promised reforms.

“The lack of this is causing significant uncertainty for businesses and for communities,” he said. “There was a strong consensus that this roadmap should be provided with this bill and the comprehensive laws tabled as soon as possible, but not less than six months after the next election.”

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