A significant review of the Privacy Act is “long overdue” but may be already out of date by the time it is finally completed in 2021, according to senior Deakin University lecturer specialising in technology Dr Monique Mann.
The ACCC’s Digital Platforms Inquiry included recommendations to strengthen the Privacy Act, including the expansion of the definition of personal information to include technical data, to strengthen existing notice and consent requirements, and introduce a direct ‘right of action’ for consumers to bring action in court to seek compensation for privacy breaches.
In its response, the federal government declined to give its full support to any of these recommendations, but instead announced a review into the Privacy Act, to be completed by 2021.
The review, backed by $1.7 million over two years, is to “ensure it empowers consumers, protects their data and best serves the Australian economy” and identify areas where consumer privacy protection can be improved. It would also ensure Australia’s privacy regime finds a balance for all elements of the community between innovation and growth of the digital economy”.
Current consultations on the Act would also be extended to consider many of the recommendations from the ACCC’s report.
Many of these things have been recommended before, Dr Mann said, and action needs to be taken now rather than another review.
“Two years is a significant amount of time in a very fast-moving field. We’ve now got a whole range of additional developments that are occurring, and the review is really quite a long way away,” Dr Mann told InnovationAus. “These things are having significant impacts on individuals in this country right now.”
“It really goes to show how far behind Australia is in terms of these developments. I welcome the review, but it’s long overdue and needs to happen quicker. The end of 2021 is a long way away. I’m concerned by the end of 2021 that it’s going to be already out of date.”
“We need meaningful reform and we need it now. We’re reaching a tipping point with all of these issues.”
The government agreed to compel tech companies to create two voluntary codes of conduct, one for dealing with misinformation and news quality and another to address bargaining imbalances between digital platforms and media companies.
But these issues should be addressed with laws and regulations, not voluntary codes, Dr Mann said.
“We really need to be doing more to address the power imbalance between individuals and these big companies, and I don’t know whether voluntary codes of practice are the best way of doing it. We need hard law and enforceable regulations across privacy,” she said.
There must be more of a focus on implementing legal human rights in Australia, she said.
“The big gap in all of this that’s not really touched upon is around the consequences of algorithmic profiling and automated decision-making, and how they’re not addressed at all under the Privacy Act,” Dr Mann said.
“We don’t have this type of broader enforceable human rights protections at a federal level. We need widespread human rights reform that would support all of these things.”
And underlying these issues is the continual under resourcing and underfunding of the Office of the Australian Information Commissioner, which has been conspicuously absent from this debate, Dr Mann said.
“There’s this broader question about where the privacy commissioners are, and why they aren’t advocating for this type of reform. Obviously competition and consumer law is an important area but when we look at the recommendations they’re largely related to privacy,” she said.
“I commend the ACCC for stepping in and doing the work of the privacy regulators, but where are they? We’re now seeing the implications of not having strong privacy protections in this country.”
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