Policy Update: November 2016

This is the first of what will be regular, detailed updates on EFA's policy work and general developments in the digital rights policy space.

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The 2016 Census

omnishambles; Noun. British, informal.

A situation that has been comprehensively mismanaged, characterised by a string of blunders and miscalculations.

The 2016 Australian Census is likely to be a popular case study in how to destroy trust on a national scale. It's also disproven the long-standing saying in the technology industry that 'noone ever got sacked for buying IBM'.

To put this disaster into context, it should be noted that Statistics Canada ran a census in May 2016, which has been widely praised as their best ever, achieving a response rate of 98.4%.

The Marrakesh Treaty comes into force

On 29th September 2016, the Marrakesh Treaty came into force. This is a ground-breaking international treaty negotiated over many years through the World Intellectual Property Organisation.

This treaty establishes a right for format-shifting of copyright material, without prior permission from the copyright owner, for the purpose of making that material accessible to blind and visually-impaired people. It also enables the movement of such accessible content across national borders.

We're expecting enabling legislation to be tabled in federal parliament within the next few weeks.

For more, see Celebrations as Marrakesh Treaty comes into force.

Digital Identity Framework

Last week, we attended a stakeholder consultation session run by the Federal Government's Digital Transformation Office (now renamed the Digital Transformation Agency).

During this session, they outlined their plans to develop a Trusted Digital Identity Framework. This is intended to provide a mechanism for individuals to verify their identity to a whole range of government and non-government entities.

This is a project that has been trying to find a home within government for some years. There are of course some serious privacy implications, but from what we learned last week, it appears that the DTO is both aware of these and has ensured they are central to the current draft design of the Framework.

We'll be monitoring this project closely. It's yet to be funded but the business case is compelling so we expect it to proceed.

If it does, we hope it will mean the end of the hapless MyGOV project, which recently suffered a totally inexcusable double data breach.

IANA transition completed

The transition of the Internet Assigned Numbers Authority away from the control of the US government has been completed. This is an historic change to the governance of the Internet that will pass almost unnoticed.

EFA has been represented during this important process by our current Chair, David Cake, through his membership of the Non-Commercial Users Stakeholder Group within ICANN.

See David's explainer for more information.

Website blocking

The first cases seeking to force ISPs to block access to offshore sites alleged to be 'primarily facilitating copyright infringement' are now before the Federal Court.

Unsurprisingly, the issue of who will pay the costs of undertaking these site blockings is front and centre. As we've seen with each of the various attempts to negotiate a copyright notice scheme, both sides (the rightsholders and the ISPs) are reluctant to pick up the tab.

We're following these cases closely. Here's some good coverage from the most recent hearing.

Recent submissions


Department of Communications - Consumer Representation review.

This review is looking at the effectiveness of the Australian Communications Consumer Action Network (ACCAN), which is funded by the government under the terms of the Communications Act.

EFA is a member of ACCAN and will be making a submission. If you'd like to contribute to that, please get in touch.

Open Government Partnership - National Action Plan

The government has released a draft National Action Plan and is seeking urgent public input.

A series of hastily-arranged public information sessions have been organised in most capital cities. There's also a webinar being held on Tuesday 8th November at 2.30pm AEDT (details here).

If you'd like to give feedback, please do so on the Australian Open Government Partnership Network's website.

Productivity Commission: Data Availability and Use (Draft Report)

The PC has just released its draft report into 'big data' which recommends that individuals should have a right to access government and business data about themselves.

We'll do a thorough review of this report but at first glance it looks like another well-considered piece of work from the Commission.

Again, if you'd like to contribute to our response to this report, please get in touch.

There are also public hearings being held in Melbourne and Sydney later this month.


Mandatory Data Breach Notification

The government has finally introduced a bill to implement a Mandatory Data Breach Notification scheme. This is, by our count, the fifth time such a bill has been presented to the federal parliament.

It was a condition of the Joint Intelligence and Security committee's support for the mandatory data retention legislation that such a bill be passed by the end of 2015.

This version of the bill has been significantly watered down and now provides significant discretion to organisations to contest what amounts to 'a notifiable breach'.

It may be that this change makes this legislation fairly ineffective.

Meanwhile, the Red Cross Blood Service has suffered a massive data breach - probably Australia's biggest to date - but has shown the way for other organisations by being very proactive in notifying the people affected.

See the submission we made to the Attorney-General's Department on this legislation in March.

Revenge Porn

Labor MPs Terri Butler and Tim Watts have been pushing for federal legislation to criminalise the sharing of 'private sexual material' without the consent of the individuals involved, as occurs with so-called 'revenge porn'.

They have reintroduced their private member's bill which would establish three new offences carrying a maximum sentence of three years imprisonment.

While we're always very wary of new laws that seek to restrict speech, we also believe in laws that protect personal privacy rights, and acts of 'revenge porn' can be truly devastating for the victims. We're also reasonably comfortable that this legislation has appropriate exemptions for journalists and for the public interest.

We're therefore cautiously supporting this bill.

We made a submission to the ALP's inquiry on this subject in 2015 and one to a subsequent Senate inquiry in January.

Copyright Act Amendment

Last December, the Communications Department released a draft bill to amend the Copyright Act. We're expecting a bill to be introduced within the next fortnight based on that draft.

It's expected to:

  • expand the copyright safe harbour scheme beyond the major telcosaddress the issue of unpublished works (see Cooking for Copyright)
  • remove restrictions that prevent digitisation of archives and other collectionssimplify how schools can use copyright material
  • enable format-shifting without prior approval for the purpose of making content available to people with disabilities (this enables the implementation of the Marrakesh Treaty but actually goes further as it includes all types of disability)

We're strongly supportive of these changes, though we don't think they go far enough. There is some opposition to the extension of the safe harbour scheme, but the other points are likely to have widespread support.

Data Re-identification

In the wake of the publishing of a supposedly 'de-identified' data set from Medicare that was shown to be readily 're-identifiable', the Attorney-General rushed out a proposed bill to criminalise the re-identification of government data.

This bill appears to be overly broad in its drafting, and has clearly been put together with no effective consultation. It therefore seems that it will potentially outlaw certain important research work.

We expect that this bill will be referred to a Committee so that it can be properly scrutinised.

Join the Policy Team

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To get involved, please complete our: Volunteer Form

Interested in privacy issues?

The EFA Privacy discussion list is run in partnership with the Australian Privacy Foundation. It's an excellent source for the latest developments in privacy policy and practice and features many of the most active privacy experts from Australian civil society.

It is a relatively high-volume list (multiple emails per day) though, so won't be for everyone.

If you're game, you can subscribe here.