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Roxon asking right questions at wrong time

Surely breach disclosure laws should come before data retention laws

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COMMENT Australia’s Attorney-General, Nicola Roxon, yesterday introduced a Discussion Paper on Privacy Breach Notification (PDF).

The release of the paper almost certainly caused cheers in the vendor community, as The Reg is aware of at least one multinational software company that has made breach notification laws the centrepiece of its lobbying efforts because they will instantly expand the market for its products.

While some Reg readers may therefore feel relieved that every day such laws stay off the statute books is a day on which they don’t have to buy or implement that software, a more pragmatic view of the paper’s release could ask why the government has chosen to initiate a discussion about such laws after it commenced discussion on data retention laws.

Australia, as the Discussion Paper noted, agreed that such legislation was a good idea back in 2008, when the Australian Law Reform Commission delivered a major review into the Privacy Act. Many of the recommendations from that review have since been enacted but breach disclosure laws have not.

The paper also notes that the EU and other nations around the world got this kind of law up years ago and have, especially in the USA, commenced a second generation of debate to fine-tune the laws.

All of which means debate on breach notification could have started years ago.

The Discussion Paper therefore goes over a lot of old ground, and the questions it says need answering could have been asked at any time since 2008. Those questions, for the record, are:

  • Should Australia introduce mandatory data breach notification laws?
  • What kind of breaches should trigger notification requirements?
  • Who should decide whether notification is necessary?
  • What should be reported and how quickly?
  • How should a notification requirement be enforced?
  • Who should be subject to a mandatory data breach notification law?

All of those questions become rather more pressing in the light of Australia's proposed data retention regime.

A better question may therefore be: “Why is Australia only considering these questions now, when such legislation has been operating elsewhere for a while without any notable problems?”

The answer is likely to lie in political priorities that have made other issues more important.

Roxon therefore seems to be asking worthy questions, but at the wrong time. And with time running out for this government, it seems unlikely these questions will be answered in a timely fashion for those with the most to lose – Australia's citizens. ®

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