Privacy and Doxxing Reform Bill

The Australian Human Rights Commission (Commission) has provided a submission to the Legal and Constitutional Affairs Legislation Committee on the Privacy and Other Legislation Amendment Bill 2024 [Provisions] (Bill).

Human right to privacy

The Privacy Act 1988 (Cth) (Privacy Act) is in urgent need of reform to protect the right to privacy in the digital era. Although the Commission is pleased by the introduction of much-needed reform to the Privacy Act, these amendments represent only a fraction of the necessary reforms to which the Federal Government has previously committed.

The Privacy Act is not fit-for purpose, with the Attorney-General previously stating that it ‘has not kept pace with the changes in the digital world’.

While this Bill addresses some of these issues, it does not contain many of the needed reforms. In particular, failing to include the ‘fair and reasonable test’, which would operate as a ‘shield’ against excessive data collection, is a missed opportunity.

The full suite of reform is urgently needed to address the increasing threat to privacy in the modern world.

Statutory tort

Although several crucial reforms were not included in this first tranche of reforms, the introduction of a statutory tort is a significant improvement for the protection of privacy in Australia.

The Bill requires a serious invasion of privacy to be either intentional or reckless. At a time when invasions of privacy are increasing in frequency and severity the fault element should also cover negligent acts. Negligence requires a ‘great falling short of the standard of care that a reasonable person would exercise in the circumstances’.

The fault threshold is currently too high, and the fault element should be removed as previously recommended by the Commission.

Children's online privacy code

The Commission is supports the introduction of a Children’s Online Privacy Code which will significantly strengthen privacy protections for children and young people. 

This Code would provide specific guidance on upholding the best interests of the child in the design of services and collection and use of children’s data.

The views of children should be sought and taken into account in the development of this Code.

Doxxing

The Commission has previously indicated its support for balanced reforms that target doxxing. Doxxing impacts various human rights, most directly the right to privacy, which is a cornerstone human right. Doxxing can also violate several other rights, including the rights to equality and non-discrimination, life, security, health and can undermine human dignity.

The proposed criminal offence of doxxing will limit the human right to freedom of expression by restricting certain forms of sharing information. The key issue is ensuring any offence is carefully tailored to meet the strict tests of necessity and proportionality and to avoid capturing reasonable online discourse about a person.

There are also concerns that doxxing laws may unreasonably capture public interest whistleblowing and journalism. Including a provision in the Bill which expressly protects the release of information for legitimate public interest purposes would help to further strengthen the protection of freedom of expression while still effectively addressing the harms caused by doxxing.

Recommendations 

The Commission makes six recommendations to amend the Bill. The submission should be read in full to understand the full suite of recommendations proposed.