Goverment mulls data breach notification law, but details are secret

A draft bill has been privately circulated among some stakeholders

Australia's government is keeping a tight hold on proposed data breach notification legislation that could become law before a federal election in September.

The country does not have a data breach notification law. Instead, the federal government recommends that organizations notify the Office of the Australian Information Commissioner (OAIC) if a breach poses a "real risk of serious harm."

Earlier this month, the Attorney-General's Department privately shared a draft bill with some stakeholders that outlines the government's thoughts on data breach notification and what would be required of companies and organizations.

A spokesman for the attorney general said the draft bill hasn't been publicly released. The document, titled "Exposure Draft -- Privacy Amendment (Privacy Alerts) Bill 2013," was obtained by SC Magazine but not published.

However, some organizations and companies have publicly published their responses to the draft legislation. Roger Clarke, chairman of the Australian Privacy Foundation (APF), said the attorney general shared the draft bill with the APF on the condition it be held in confidence.

Clarke said the draft bill, which he believes should be publicly released, could be stronger and needs some tightening.

"We think there's a number of things that need to be changed," Clarke said. "I don't think it needs to be rewritten."

The APF argued in its April 22 response to the Attorney General that determining when an organization should report a breach -- which it said is defined in the draft bill as a "real risk of serious harm" -- is too high. Any breach should be subject to notification when there is any risk of harm, the APF said.

Under the draft bill, "notification would generally remain voluntary, except in the case of some very serious breaches, and the result would be that the bill would "only have a very limited impact on organizations that have inadequate safeguards," the APF wrote.

Organizations should be subject to "substantial penalties" for failing to secure their data, he said.

"We are arguing for criminal, not just civil liability," Clarke said.

A spokeswoman for the OAIC said on Thursday that Privacy Commissioner Timothy Pilgrim in general supports a data breach notification law.

Last November, the OAIC said current data breach notification arrangements are insufficient. New legislation, the OAIC suggested, should be an amendment to the Privacy Act 1988.

In December, Australia's Parliament passed a bill that amended the Privacy Act, which included giving Pilgrim the power to seek civil penalties for serious data breaches. But the bill stopped short of mandating that organizations notify consumers of data leaks.

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