Privacy safeguards useless without funding


Denham Sadler
Senior Reporter

Australia’s privacy office “urgently” needs more funding to properly conduct its oversight role of the COVIDSafe contact tracing app, with Labor calling for three standalone commissioners to also be appointed.

Legislation passed last week handed significant oversight duties to the Office of the Australian Information Commissioner (OAIC) for the controversial contact tracing app, with accountability for all data usage by state and territory health bodies, the app itself and the Commonwealth’s data store.

The OAIC is to conduct its own investigations, handle complaints by users, refer matters for criminal investigation and produce a report on the app every six months.

These new duties are a “top priority” for the OAIC, Information Commissioner Angelene Falk said, but the government will not be providing any additional funding or resources to the agency to undertake them.

Privacy oversight: The commissioner needs more resources to get the job done

This is despite ongoing concerns around the resourcing of the OAIC in the face of significant increases in privacy and Freedom of Information request complaints, and a series of new duties surrounding the mandatory data breach notification scheme, the Consumer Data Right and now the COVIDSafe app.

Attorney-General’s department officials told a senate hearing earlier this month that the OAIC did not need any additional funding to undertake the new role, while the government has now said it is in discussions with the office over the funding issues.

Labor raised the OAIC’s funding with Attorney-General Christian Porter in discussions on the COVIDSafe legislation, and is now pushing for additional resources and for three standalone commissioners to be appointed.

Despite the legislation providing for separate freedom of information, information and privacy commissioners, Ms Falk has occupied all three of these roles since 2018 under the Coalition.

“If the Morrision government is serious about building public confidence in this app, now, more than ever, the Attorney-General must appoint a standalone, dedicated Privacy Commissioner,” shadow Attorney-General Mark Dreyfus told InnovationAus.

“Back in October last year the Information Commissioner told Senate Estimates that her office is already severely under-resourced. It’s absurd for the government to assert that the Information Commissioner can now be given a range of additional oversight responsibilities while continuing to do three jobs, without additional funding.”

Privacy-enforcing legislation like the COVIDSafe bill won’t be effective unless there is a strong and well-funded privacy body, Digital Rights Watch board member David Paris said.

“A well-resourced OAIC is essential for maintaining public confidence in digital initiatives undertaken by the government. The urgency our current circumstances created has put the OAIC under enormous pressure,” Mr Paris told InnovationAus.

“They not only have to play a vital oversight role, they are often put in a position where they need to advocate for the better interests of the public, many of whom may not be aware of the full consequences of what the government is doing, or their rights in such situations.

“Any statement from the government that takes our rights seriously without it materialising in proper resourcing for the OAIC suggests that such a claim is more about image than substance.

“Any shortfalls in the independence or resourcing of the OAIC puts trust in government at risk, and we’ve seen how critical that trust is in a crisis like the one we’re in now.”

A number of Labor MPs and Senators spoke in Parliament last week on the need to provide more funding to the OAIC.

“The OAIC should not be stretched or have to reduce its other capabilities to undertake these important COVIDSafe app oversight duties,” shadow Home Affairs minister Kristina Keneally said.

In response, Foreign Affairs Minister Marise Payne said government would work with the OAIC in the lead-up to the next federal budget, now due in October.

“I would affirm for the record that, since this government was elected, funding to the OAIC has increased by over 75 per cent. As we do with all agencies, we’ll continue to work with the OAIC to understand their resourcing requirements moving forward,” Senator Payne said.

The OAIC did receive a $25 million funding boost from the government in 2018. But this was used to conduct its new duties under changes to the Privacy Act rather than address its existing workload and backlog. The OAIC used this funding to increase its staffing levels to 124.

But each element of the OAIC’s work is rapidly increasing, including privacy complaints and FOI review requests. From July, the OAIC will also have an oversight and enforcement role for the open banking scheme, and this will be extended to other sectors soon too.

The OAIC had previously provided quarterly reports on the mandatory data breach notification scheme but is now only releasing one annually. It is also investigating controversial AI firm Clearview and has launched legal proceedings against Facebook.

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