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Optus Privacy Breach Still Before Court

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During the December Senate Estimates, I asked Ms Carly Kind, the Privacy Commissioner, what action had been taken regarding the Optus privacy breach in 2022. She explained that the matter is currently before the Federal Court.

I then raised two complaints that have been ongoing for more than two years. Ms Kind advised that those questions would need to be taken on notice, as would my query about the expected timeframe for a response. She was clear and firm on one point: the Commission operates independently.

Finally, I put it to Minister Nita Green that many Australians simply cannot afford access to justice. For them, the only safeguard is government agencies doing their job properly—and that responsibility cannot be understated.

— Senate Estimates | December 2025

Transcript

Senator ROBERTS: Thank you for appearing again tonight. I’ve got some simple questions on the data breach by Optus. Could you please confirm the current status of the Office of the Australian Information
Commissioner’s investigation into the major Optus data breach that occurred in 2022?

Ms Kind: I might speak to that. In August of this year, the Office of the Australian Information Commissioner filed civil penalties proceedings against Optus with respect to contraventions of APP 11 that we allege contributed to that breach in 2022. That matter is now before the Federal Court.

Senator ROBERTS: Can you explain the prolonged administrative inaction including the handling of complaints CP22/02004 and CP23/00456 that’s been going on for two years?

Ms Kind: I’m sorry, I don’t have those complaint numbers before me to cross-reference. Unless you’re able to provide me with more information, I will have to take any question on notice.

Senator ROBERTS: That’s fine. Take it on notice. I hear that you’ve taken the case to court. Could you provide a timeline for expected resolution and publication of the findings of your investigation?

Ms Kind: With respect to those matters that you’ve just referenced?

Senator ROBERTS: Yes.

Ms Kind: I’m happy to take that on notice.

Senator ROBERTS: Thank you. Can you provide an assurance that the OAIC’s regulatory powers will be exercised independently of civil proceedings?

Ms Kind: I’m very confident to provide that assurance with respect to all matters. We operate entirely independently and rigorously in every matter we take on.

Senator ROBERTS: Will the government commit to reviewing and strengthening data protection enforcement mechanisms, Minister? I’m very worried. Many Australians are worried; they’re marching in the
streets about it—the increased digitalisation. It just needs one hack, and there can be devastating consequences for so many people. I mentioned this so many times in the Senate, outside the Senate. We’ve got huge databases linking many, many people. It just needs one hack and it’s gone.

Senator Green: Senator, I’m not sure if you’re aware, but the government has committed to privacy reform. There’s a second stage of that being undertaken now. We’re committed to uplifting privacy laws because we
understand that they’re essential for Australia’s trust and confidence in the digital economy and digital services, as you raise.

Senator ROBERTS: I’m worried about data protection, though—not just privacy but data protection. What is the government doing about it? The consequences now will be devastating. The majority of hacks, I understand, are suffered by big tech platforms and government. Most of the problems are breaches of human oversight, undersight.

Senator Green: I understand what you’re saying, Senator. We passed laws in 2024 as a first tranche of privacy reforms through the Senate. We understand that the Australian Privacy Act is outdated and not fit for purpose for the digital age; that’s why we’re undertaking additional reforms. There will obviously be a process for that legislation to be brought to parliament to be considered and to go through committee processes, in which I’m sure you will participate. We’re undertaking that work at the moment.

Senator ROBERTS: When do you think we will see the first signs of—

Senator Green: The department might be able to give you more advice about that work.

Senator ROBERTS: People are worried about it; they’re terrified of it.

Senator Green: That’s why we’re doing something about it.

Ms Chidgey: I can say we’re working on that second tranche of privacy reform as a priority. Timing will ultimately be a matter for government. I can also say that the privacy reforms do have a data protection aspect to
them, and the Privacy Act contains within it requirements for securing personal information. I would also highlight that the government has a cybersecurity strategy that complements the privacy work.

Senator ROBERTS: Given that, as I understand, the majority of breaches are human error, it’s going to be hard to make a bulletproof performance against that. Is there any sign of increased penalties for deliberate
breaches or negligent breaches?

Ms Chidgey: There were some changes made in the last term of government around penalties for breaches and enforcement, and the Privacy Commissioner might want to say more about that. We’ll obviously look at
education that crosses both the digital and human error aspects.

Senator ROBERTS: Thank you for that. Is there any provision for increased access to justice for the people? At the moment so many people cannot afford to go to court. That’s just a fact.

Ms Chidgey: I think this is where the role of the Privacy Commissioner comes in; Ms Kind might want to say more about her role. But that is the role of the Privacy Commissioner—to assist in addressing data breaches.

Ms Kind: If I might add—and share your concerns and your urgency—one of the really positive reforms that was adopted by parliament last year in the tranche 1 reforms included the ability for the Office of the Australian Information Commissioner to seek orders from the court for compensation for individuals with respect to privacy breaches. We already have the power to issue or order compensation for our own decisions, but we can now also seek them from the Federal Court in civil penalties proceedings. And I think that goes to the concern you have about remedying privacy complaints for individual Australians.

Senator ROBERTS: Thank you.

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Greedy Telcos Push 3G Shutdown – Government Must Act Now!

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Greedy telco companies are still pushing ahead with their plans to shutdown the 3G network. This is despite a million devices due to be affected include hundreds of thousands of 4G mobiles.

Pacemakers, medical alarms, EFTPOS machines and emergency phones in elevators are just the tip of the iceberg.

The Government must set minimum criteria and guarantees before allowing the shutdown to go ahead. Anything else prioritises telco profits above the lives of Australians.

Transcript

I move: That the Senate take note of the interim report. 

The Senate Rural and Regional Affairs and Transport References Committee’s inquiry into the 3G mobile network shutdown can claim a small victory, yet there will be no champagne corks popped. Telstra and Optus announced they will delay their 3G shutdown for two months. I called for a delay in March. I called for the 3G shutdown to be delayed until Australia was ready for the transition. 

The committee has been running an inquiry into the Telstra and Optus proposal that was established on my motion here in the Senate. That inquiry has revealed Australia is nowhere near ready to flick the switch on 3G, and there’s no hope that it can be fixed in just two months. It’s ridiculous. This short delay is nowhere near good enough. Before we can even consider going ahead with the 3G shutdown, the Minister for Communications, Minister Rowland, must intervene and set guarantees of minimum service thresholds on the telcos. It’s time to put Australian people above the telcos short-term company profits. 

The inquiry is ongoing, and given the shutdown deadline was rapidly approaching, the committee commendably issued this interim report. This inquiry discovered a tidal wave of disaster coming for business and Australians. The shutdown won’t just affect 3G mobiles, of which there are still hundreds of thousands in operation; it will affect 4G mobiles, even though many of those owners think they’re safe. 

As the committee notes: 

Furthermore, there are close to half a million non-mobile devices that will not function once the 3G network is shutdown. As an example, these include water and electricity meters, farming monitoring and diagnostic equipment, medical devices, emergency phones in elevators, in addition to safety and asset tracking devices. 

It goes on to say there are: 

… serious, and in some cases life threatening, impacts on people and organisations if these devices do not work after the shutdown. 

Telstra and Optus were at pains to point out how much money and time they had put into making customers aware. Despite these apparently huge efforts—highly ineffective efforts—the total number of mobile and non-mobile devices that the shutdown will affect is close to one million. The telco companies say they’re working on getting all of the 4G coverage up to the same level as 3G. They will not guarantee it will be done as guaranteeing the coverage might cost them money. Once the 3G network is shutdown though, it will be too late. If the communications minister doesn’t intervene, she’ll be giving the telco companies free rein to screw over Australians for short-term profits. 

It’s been clear since the inquiry’s public hearings in July that this shutdown must be postponed indefinitely. The telco companies have made it clear they don’t care about the consequences. Telstra and Optus have confirmed they’ll charge ahead with the shutdown. The telcos are more interested in their short-term profits than the safety and lives of Australians. 

Let me be clear: this shutdown will put the lives of Australians at risk, and Telstra and Optus are going to do it anyway. The Minister for Communications must intervene, yet so far all we have heard is crickets. We still have no statement from the minister that she will impose even one condition on Telstra and Optus—not one. We haven’t even seen a response from the minister to this interim report, despite the fact it was delivered nearly two weeks ago and the shutdown was due to happen just two weeks from now. 

I wish to thank the rural and regional affairs and transport committee for their fantastic work, especially the secretariat, in collating the numerous submissions and organising days of important public hearings, and Senator Canavan, the chair. The Senate successfully supported my motion yesterday ordering the government to respond to this inquiry, with Monday as the deadline. If the minister fails to respond or fails to provide a plan to intervene, we will be pushing this further. 

I take this opportunity to express appreciation for Mr James Parker’s comprehensive and insightful submission to the 3G inquiry and his powerful and clear witness testimony. In particular, I note that he revealed arguably the inquiry’s most significant discovery: the complete lack of compatibility of and standardisation across telco and phone manufacturers. It’s time to put the Australian people above the short-term profits of Telstra and Optus. The communications minister must intervene and set minimum service thresholds and other guarantees for the telcos to fulfil before we can even consider shutting down the network. I want to point out that France has delayed their shutdown until at least 2028 because they found out about the problems with the lack of standardisation and the lack of compatibility amongst phones. Britain is still on 2G and 3G and has now delayed their shutdown until late this decade. The minister must address the compatibility and standardisation issues that are costing 4G users needless expense and denying market competition. The people who are suffering are Australian consumers. I seek leave to continue my remarks later. 

Leave granted; debate adjourned. 

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Telcos Let Off ‘Scot-Free’ on 3G Shutdown

Telstra and Optus’ two-month delay on the 3G mobile network shutdown is a failure of the Communications Minister Michelle Rowland and defies recommendations from a Senate inquiry.

A two-month delay is nowhere near enough time to fix the million mobile and non-mobile devices the shutdown is still estimated to seriously affect. The telco companies have been let off scot-free.

There will be no consequences if Telstra and Optus flick the switch and leave hundreds of thousands of Australians in danger.

The 3G shutdown is only being done to boost the profits of Telstra and Optus at the expense of Australians living through a cost-of-living crisis.

READ my media release in full here:

Media ReleaseDownload
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Is ACMA Biased Towards the Left?

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During recent Senate Estimates I checked with the Australian Communications and Media Authority (ACMA) as to why it did not publicise complaints about the ABC, yet pushed out press releases for similar breaches by the Sky Network.

I also inquired into the Optus outage last year to see whether there is any new information around the failure of emergency 000 calls and whether Starlink (high speed satellite internet) was being considered as a backup in the future.

Transcript

Senator ROBERTS: Thank you for appearing again today. On 26 April 2023, you issued a press release about the Sky News program Outsiders for breaches of industry codes. On 20 March 2023, in relation to the ABC, in response to Senator Henderson, you agreed that the ABC breached the codes during their coverage of a community meeting in Alice Springs. You endorsed the ABC Ombudsman’s finding that there were breaches of the code yet published no press release about that, from what we can see. Why does a conservative news service cop a full press release when you conclude they’ve breached the code but when the ABC breaches a code there’s barely a peep from you publicly? 

Ms O’Loughlin: I might need to refer to my colleagues for the details of that circumstance. 

Senator ROBERTS: Sure. 

Ms O’Loughlin: I would have to say that we put out media releases for pretty much every breach that we look at under the Broadcasting Services Act, be it a national or a commercial broadcaster. I can take it on notice. There are certainly circumstances in the last year where we have put out media releases on the ABC. So it is not our practice to discriminate between types of broadcasters. We like to make transparent our decisions about breaches across the board. I might just see whether or not my colleagues have anything to add. 

Ms Chapman: In the instance of the ABC Alice Springs issue, we didn’t undertake a full formal investigation. We fully considered the matter. We looked at the content. We considered the report by the ombudsman at the time. We didn’t find a formal breach in that instance. That was on the basis that the ABC themselves had found a breach. The ABC themselves conceded that there were issues with the broadcast and that there was considerablemedia attention at the time which highlighted the findings that the ABC made. So we didn’t put out a press release because we didn’t make a formal finding. 

Senator ROBERTS: Thank you. 

Ms O’Loughlin: I will add to that. I just found something in my notes. For example, from the investigation we did on the ABC’s Four Corners program called The Big Lie, we did a media release for that on 21 December 2022 because we had found breach findings in that program. 

Senator ROBERTS: Thank you. I accept your answer from before. I refer to your letter, Ms O’Loughlin, to Senator Henderson on 20 March that is file reference BM11801. You mentioned in the second last paragraph the matter conducted by the ABC about the circumstances attaching to this matter, including any changes to its editorial processes. Did the ABC advise of any changes to its editorial processes? 

Ms O’Loughlin: I don’t have the letter in front of me. 

Senator ROBERTS: I’ll read it. 

Ms Chapman: We did seek a response from the ABC, but I think we need to take on notice whether we received a response. 

Senator ROBERTS: I will read the second last paragraph. However, the ACMA has requested that the ABC keep it informed about the outcome of any further internal investigation conducted by the ABC about the circumstances attaching to this matter (including any changes to its editorial processes) and any additional steps that may be taken by the ABC as a result. 

Ms O’Loughlin: Senator, we will take that on notice for you. I don’t have that in my pack. 

Senator ROBERTS: Thank you. What does it do to the trust of a media company when it has obvious bias? 

Ms O’Loughlin: Senator, I don’t think that’s something on which I can express an opinion. I do think in our experiences broadcasters take very seriously their obligations under the various regulatory codes that they are subjected to, which do come to, in most cases, provisions around bias, impartiality and factual accuracy. 

Senator ROBERTS: It would erode trust if it is done often? 

Ms O’Loughlin: That would probably be a matter for the broadcasters to comment on, Senator. 

Senator ROBERTS: Thank you. I will ask some questions here briefly. If they’ve been covered, just tell me so. I’ve checked with Senator Cadell. He hasn’t covered this one. Could you briefly explain the obligation for carriers to allow network switching for Triple Zero calls and why this didn’t happen during the Optus outage? The second part you’ve already discussed at length, so I’m not interested in that. Could you please explain the obligation? 

Ms O’Loughlin: Certainly, Senator. The obligation is usually referred to as the mobile camp-on provisions. That is a globally standardised arrangement. Where emergency call services can’t be delivered by a particular carrier for a particular reason, those networks allow those calls to camp on to their network for them to be delivered to the emergency call service. That’s what— 

Senator ROBERTS: Free automatic switching? 

Ms O’Loughlin: So it’s an automatic transfer of those particular calls going to emergency call services to camp on to another network. If I have that incorrect, my colleague will let me know. 

Senator ROBERTS: She’s got it. Thank you. Are there any fines applicable for carriers failing to allow switching or failing to make switching work for Triple Zero calls? Would Optus be facing that? 

Ms O’Loughlin: I think part of what we’ll be looking at in our investigation is what was the reason, if in fact that was the reason, some emergency calls didn’t get through. As I mentioned earlier, it’s still not very clear. We’re still in information gathering mode about why that didn’t work. I will ask Mr Fenton to go over some of the potential regulatory responses we may have, if we do, in fact, find any breaches. But it is early days. 

Senator ROBERTS: Thank you. 

Mr Fenton: I will clarify again that these are enforcement options available to the ACMA if it does find breaches of the determination in question—the emergency call determination. The ACMA can issue a formal warning. It can issue a remedial direction to take action to comply. It can accept a court enforceable undertaking. There are infringement penalties available currently set at $18,780 per contravention. It is open to the ACMA to apply to the Federal Court for penalties as well. 

Senator ROBERTS: This is an interesting quirk. Does per contravention mean each phone call?  

Mr Fenton: It would depend on the construct of the particular obligation in question. But it can apply to a specific contravention. Once again, it comes back to the actual structure. 

Senator ROBERTS: Yes. I understand. Thank you. Finally, it strikes me that there is the Starlink service, which covers almost everywhere in Australia. It can access the sky, and that’s pretty much everywhere. Would it be a good back-up for text messages and limited voice conversations and emergency calls to fit into that network? 

Ms O’Loughlin: That’s a really interesting question. I think there’s a lot of interest in Starlink and, indeed, other satellite services, such as low earth orbit satellite services, that may be able to provide direct to handset text or, indeed, calls which are now starting to emerge. There is the potential for that to really benefit particularly people in regional or remote areas or areas of Australia that have trouble getting signals. I think the department is commencing to look at that in more depth to see what that potential is. There has been quite a lot of strong interest internationally as well, as you can imagine, from particularly countries who have the same sort of issues we have in trying to get signals into various areas. The United States recently, from my reading, had come to the conclusion that technology was just not quite mature enough at the moment to be a backstop for emergency calls but could be in the future. I think the department is going to be looking at whether that is a potential in the future. We think that’s a really exciting development in the satellite space. 

Senator ROBERTS: Thank you. I must say that I appreciate the direct answers. 

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