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Senator Penny Wright speaks on privacy laws

Speeches in Parliament
Penny Wright 28 Nov 2012

I rise to speak on the Privacy Amendment (Enhancing Privacy Protection) Bill 2012. The Australian Greens support the aims and objectives of this bill, in particular the unification of the National Privacy Principles and the Information Privacy Principles into the new Australian Privacy Principles that apply to both Commonwealth agencies and private sector organisations.

The bill amends to the Commonwealth Privacy Act 1988. It has been developed following numerous reviews and inquiries, which have included significant consultations with stakeholders. However, as was pointed out during this inquiry process, the reforms have been a long time coming. For example, this is the first major reform to credit reporting since its introduction in the 1990s. While there was majority support for the contents of this bill amongst stakeholders, some concerns were expressed that although the bill did improve on the current position-that is because it is an important step towards that goal of harmonisation and simplification-it could not necessarily be said that it was an enhancement. Indeed, during the Senate committee inquiry into the bill three different stakeholders expressed some concerns that this bill was a missed opportunity and it did not go far enough in either streamlining provisions or in providing consumers and citizens with better protections.

Changes to Australian law to modernise, strengthen and streamline privacy and credit reporting provisions are important. In doing this we need to be careful that we strike the right balance between privacy rights and the free flow of information. The Australian Greens strongly support the strengthening of Australian law to ensure enhanced compatibility with our obligations under international human rights law. As a signatory to the International Covenant on Civil and Political Rights, the ICCPR, Australia has an obligation to promote and protect the right to privacy. Indeed, article 17 of the ICCPR provides that:

1. No one shall be subjected to arbitrary or unlawful interference with his- And I use that word advisedly; it is slightly anachronistic- privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

In signing up to the ICCPR Australia has agreed to take all the necessary steps to respect, protect and fulfil human rights.

We agree with the findings and recommendations made in the committee report, and we made some additional comments directed at improving consumer protection and privacy rights. We acknowledge that the government has agreed to implement many of those changes and is putting forward amendments today. However, we feel that a couple of additional changes should be made to improve consumer protections. I will turn to these now.

In relation to proposed paragraph 6Q(1), the Australian Greens would have preferred to go further than what was recommended by the Senate committee. We are of the view that a default listing should not occur until at least 30 days after a default notice has been given. In practical terms that gives a borrower sufficient time to receive the notice, which may be subject to the vagaries of the post, contact the credit provider and/or try to rectify a default before a listing can be made, and is consistent with other credit laws. This recommendation was made in the inquiry by the Consumer Credit Legal Centre NSW. The Consumer Credit Legal Centre submitted that the current provisions in the bill essentially enabled a credit provider to list a default immediately after issuing written notice to an individual, and submitted that this is procedurally unfair as it is the notice that is important in notifying the consumer that there actually is a default. It is more than possible to be unaware of the default simply because there was a bank error in direct debits-that is given as an example.

The Consumer Credit Legal Centre has significant expertise in providing consumer assistance advocacy and representation. It sees how these sorts of legal provisions work in practice and how they can impact on, particularly, vulnerable Australians. I think it is important that we respect this expertise and on-the-ground knowledge, which often speaks on behalf of consumers. The Consumer Credit Legal Centre recommended that the bill should be amended to require 30 days to have elapsed from the date of the written notice, before listing can occur, to avoid unintended and unfair consequences.

The submission of the Australian Communications Consumer Action Network also suggested that a listing should not occur until the credit provider has made 'reasonable attempts' to contact the debtor and has provided a specific warning regarding the default listing.

We recognise the practical reality for consumers who face financial strain, and we think that it is important they are provided with sufficient notice about overdue payments and the consequences of failing to pay such overdue payments. For this reason we support the recommendation by the Consumer Credit Legal Centre that the bill should be amended to require 30 days to have elapsed from the date of the written notice, before a default listing occurs. For that reason the Australian Greens will be moving an amendment to that effect.

We also support he recommendations made by consumer advocates that the threshold minimum amount for which a consumer credit default listing can be made should be increased. During the Senate committee inquiry stakeholders also suggested that the threshold overdue amount that gives rise to a default listing was unrealistic. The Energy and Water Ombudsman NSW, the Australian Communications Consumer Action Network and the Consumer Credit Legal Centre advocated for increasing the overdue amount from $100 to $300. The purpose of increasing the threshold overdue amount is to exclude small utility bills from the adverse consequences of credit listing. It also recognises increases in costs of living over recent years.

The Australian Greens agree that there should be an amendment to reflect recent changes in the cost of living and we suggest that the threshold amount be changed from $100 to $150. We also note that there is provision in the bill for a higher amount to be prescribed by regulation, which provides flexibility in responding to consumer concerns and cost-of-living increases down the track when $150 is not sufficient. However, we think that this minor change goes some way towards a more realistic situation. We feel that these changes will improve consumer protections in the Privacy Act.

During the inquiry process we noted that some concerns were raised by consumer advocates that the amendment to the definition of 'serious credit infringement' would not address the serious problems that this definition currently creates. As serious credit infringement is, apart from bankruptcy, the most serious type of listing that can be made-and it will ordinarily remain on a credit report for seven years-it is very significant and has substantial ramifications for individuals. For these reasons, consumer advocates such as the Consumer Action Law Centre, considered that it is essential that such listings are proportionate to the type of credit infringement and are accurate and based on clear evidence. The Consumer Action Law Centre, CALC, expressed concerns with the amendment to the bill that requires that a serious credit infringement cannot be listed unless six months has elapsed since the credit provider last had contact with the debtor. It appears that the intent of this change is to ensure that credit providers attempt to make contact with the debtor so as to avoid an incorrect listing. By its intent, the amendment seeks to enhance consumer protections. However, as CALC points out, there is no guarantee that this amendment will achieve its purported aim as the credit provider is not required to be proactive and attempt to make contact. The only requirement is that the credit provider waits six months before listing a serious credit infringement.

CALC referred to a previous submission by consumer advocates and recommended that the definition of 'serious credit infringement' should be replaced with two new definitions: 'uncontactable default' and a 'never paid flag'. The Australian Greens gave serious consideration to this stakeholder recommendation. We considered it in detail in our additional comments and raised it with the government. However, we are not satisfied that the recommendation could be adequately implemented so as to take into account instances where there was intentional fraud, and we were of the view that, practically speaking, it was not appropriate to remove the fraud from the definition of 'serious credit infringement'. We do however understand the concerns raised by stakeholders and we will endeavour to follow up with them as to how this could be reconsidered in the future.

Finally, we note that, during the inquiry process, significant concerns were raised by the Australian Privacy Foundation and the Consumer Credit Legal Centre regarding the lack of determinations that have been made under section 52 of the act. As a result of this history, the Australian Privacy Foundation, the APF, is apprehensive about the effectiveness of new reform under section 96, which provides a right of appeal to the Administrative Appeals Tribunal against decisions by the commissioner to make a determination of a complaint under section 52(1) or 52(1A). In its view, this new right of appeal is of little use unless complainants can require the commissioner to make formal decisions under section 52 of the act. It recommends that the Privacy Commissioner should be required to make a determination under section 52 wherever a complainant so requests and for complainants to be informed that they are entitled to such a formal resolution of their complaint.

The Australian Law Reform Commission, the ALRC, in its Report 108: for your information: Australian privacy law and practice,made a similar recommendation in 2009. The Office of the Australian Information Commissioner provideda supplementary submission to the inquiry and noted that the government specifically rejected the recommendation of the ALRC in 2009 on the ground that, as an independent statutory officer, the Australian Information Commissioner should be responsible for exercising the administrative decision-making powers under the Privacy Act. We understand the tension here and the importance of promoting and respecting the independence of the OAIC, the Office of the Australian Information Commissioner, and we believe that it would be prudent for the government to reconsider this matter and conduct a review of the functions and powers of the OAIC in relation to its system for managing complaints, conciliations and determinations. In our additional comments to the Senate committee, we recommended that, 12 months after the enactment of the bill, the government should conduct a review into the effectiveness of the OAIC's system for managing complaints, conciliations and determinations because, if there is a right to appeal against a determination but no determination is made, essentially there is no right of appeal.

The Australian Greens take an interest in ensuring that the privacy rights of Australians are adequately promoted and protected and we will be monitoring the impact and effectiveness of this bill when it becomes law. While we have some concerns with this bill, overall we feel that it improves and streamlines privacy laws and we support its passage. We note that the government is introducing some amendments which respond to many recommendations put forward by the Senate committee and we will be putting forward our own amendments. On this basis, we support the passage of this bill.


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