Submission responding to the report following the Review of the Privacy Act

18 April 2023

The BCA supports the need to reform the legislation governing privacy in Australia. Striking the right legislative balance will deliver substantial benefits – not just to individuals but across the entire economy.

Critically, any changes must not only protect the privacy of Australians but also enable businesses in Australia to modernise, grow, and compete in an increasingly challenging global environment.

The test will be getting this right. Unnecessary and burdensome regulation cannot be ratcheted up endlessly, making it harder for Australians to access the services and information they want, rely on and need.

Every business is becoming a digital business. The BCA believes now is not the time to deliberately put barriers in the way of Australia’s ability to seamlessly become a top five digital economy.

Poorly designed and thought-out regulation has a staggering cost on Australia’s international competitiveness. We are already seeing this drag on the economy with business investment as a share of GDP at 30-year lows, capital leaving Australia on a scale not seen since World War II, and more Australian investment going to the United States than the US is investing here. 

To keep pace with rival nations, Australia must retain this investment as well as attracting new sources of capital. Investment is crucial to the nation’s ability to continue innovating, as well as adopting and developing technological and digital advances. It underpins the nation’s productivity, and powers the ability of organisations to meet consumer needs, pay workers more and build the resilience to weather an increasingly uncertain future.

Done right, common-sense and practical changes to the Privacy Act can support and encourage investment in Australia. This is why we support many of the proposals in the report. Some of them should be prioritised as a matter of urgency, such as the review of all legal provisions that require retention of personal information.

But we have serious reservations about several proposals that appear to be ill-conceived or where the costs are expected to outweigh what appear to be only marginal benefits.

Fundamentally, the point of the Act is to protect Australians from dangerous attacks on their privacy and on their personal information. Many of the proposals fail to meet this objective. To best serve Australians, any changes to the Act should be aligned with this clear and guiding purpose.

We are concerned that some of the proposals, if adopted, will adversely affect the ability of community groups; businesses, large and small; and the media to provide essential services and vital information to Australians.

This is why we oppose proposals in the legislation that relate to ‘targeting’, ‘trading’ and ‘direct marketing’ because we argue they will make it harder for Australians to access the types of services that served them well during the pandemic such as grocery deliveries or collaboration between businesses to fight scams. We also oppose the proposed direct right of action, which we believe will lead to case law on privacy being developed in an incoherent way and potentially unnecessarily burdening Australia’s courts.

Before proceeding, the government must articulate:

  1. a clear sense of what is actually being proposed,
  2. an understanding of how the proposals will work together, and
  3. a robust assessment of the benefits and costs of the proposals.

Without further clarification, successful reform of the Privacy Act will be severely impeded. This runs the risk of creating a raft of damaging consequences – making us less attractive for investment and reducing economic growth.

You can read our full submission here.


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