Committee report supports passage of Privacy Bill with amendments

This week marks a significant development in Australia’s privacy law reform process, which is likely to result in some changes becoming law before the next federal election.

On 14 November 2024, the Legal and Constitutional Affairs Legislation Committee published its report (the Report) in relation to the Privacy and Other Legislation Amendment Bill 2024 (the Bill).

The Bill contains the first major tranche of amendments to Australian privacy laws following the six-year digital platforms review process instigated by the ACCC. See our earlier article on the Bill.

The Report supports the passage of the Bill with significant amendments to address issues raised in submissions before the Committee by media, technology organisations and others. The text of any amendments is yet to be seen. The recommendations of the Committee include:

(a) changes to the proposed privacy tort to:

(i) ensure that courts take into account public interest considerations other than privacy without the defendant having to adduce evidence in relation to them;

(ii) clarify that ‘freedom of expression’ includes ‘artistic expression’;

(iii) ensure that the journalism exemption applies to a person involved in the publication, re-publication or distribution of journalistic material, and make it clear that “journalistic material” in that exemption includes “editorial” material; and

(iv) provide that injunction powers are not limited to interim injunctions.

(b) require the Information Commissioner to consult with relevant industry bodies or organisations when developing the Children’s Online Privacy Code during a period of at least 60 days;

(c) enable the Information Commissioner to issue discretionary notices to remedy alleged breaches before issuing an infringement notice in relation to breaches covered by the new infringement notice provisions; and

(d) clarify emergency information sharing powers to make it clear that they are not intended to extend to national broadcasters (other media are already excluded).

The Committee received some submissions on proposed privacy reforms outside of the Bill. For example, the Privacy Commissioner, Carly Kind, argued in favour of bringing forward changes to the “personal information” definition and a “fair and reasonable” test. These are both significant proposed changes, and would have material implications for the technology and media sectors, which have been the subject of extensive submissions during the consultation processes leading up to the Bill.

The Software Alliance, the Australian Information Industry Association and Tech Council of Australia argued that the controller/processor distinction, which is found in other jurisdictions’ privacy laws (such as the GDPR), should also be introduced quickly.

An AGD representative noted that the first tranche Bill was “intended to address areas where reform has been identified as urgent and can be progressed largely without a direct or significant regulatory impact on entities”. She said that there would be further consultation ahead of the second tranche of reform proposed by the Government.

It is likely that amendments to the Bill will be tabled in the relatively near term given the limited number of sitting days before it will be necessary to declare a federal election and commence the caretaker period. We will provide a further update at that stage.