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On 17 September 2012 the House of Representatives passed
important reforms to the Privacy Act 1988. Key reforms
include expanded powers of the Australian Information Commissioner
and a new set of 13 Australian Privacy Principles
(APPs) to replace the current Information Privacy
Principles for the public sector and National Privacy Principles
for the private sector.
The APPs are high level principles which set out standards,
rights and obligations in relation to the handling and maintenance
of personal information. The APPs broadly follow the form and
content of the exposure draft APPs, but contain a number of
changes.
Significant changes to the Privacy Act create additional
obligations
The significant changes include:
requiring Australian organisations to maintain a clearly
expressed and up-to-date privacy policy including, if the entity is
likely to disclose personal information to overseas recipients, the
countries in which such recipients are likely to be located if it
is practicable to specify those countries
changes to how personal information may be sent outside of
Australia, including a general obligation on organisations, before
disclosing personal information to an overseas recipient, to take
reasonable steps to ensure the overseas recipient does not breach
the APPs (subject to specified exceptions)
requiring that sensitive information may (subject to certain
exceptions) only be collected by an organisation if the individual
has consented to the collection and the information is reasonably
necessary for one or more of the organisation's functions or
activities
creating an obligation on organisations where personal
information is corrected to take reasonable steps to notify any
other entity to which it had previously disclosed the information,
if that notification is requested by an individual.
While the changes listed above are the most significant
affecting the private sector we encourage you to refer to the Bill
for a complete understanding of all of the changes that will be
implemented by the APPs.
Increased powers of the Australian Information
Commissioner
The reforms will also enhance the powers of the Australian
Information Commissioner to improve the Commissioner's ability
to resolve complaints, conduct investigations and promote privacy
compliance. A key change will include the ability of the
Commissioner to accept written undertakings from organisations that
they will take, or refrain from taking, specific action to ensure
compliance with the Privacy Act. This will allow organisations to
take active responsibility for actions which might otherwise result
in a court-based outcome. The Commissioner will also receive new
powers to direct an organisation to prepare a privacy impact
assessment for particular projects or programs.
What organisations should do now
Should the Bill pass the upper house, which may occur this year,
the proposed reforms to the Privacy Act will have a significant
impact on the regulatory framework governing how personal
information is collected and handled by Australian organisations.
The private sector should be aware of the proposed changes and be
seeking advice on how the reforms will affect existing privacy
policies and procedures and contractual arrangements to ensure
compliance. These regulatory changes will likely require changes to
an organisation's policies and, potentially, existing
contractual arrangements. Once the Bill passes the upper house,
organisations will need to act to ensure compliance when the
amendments to the Privacy Act become effective. We will keep you
informed of the Bill's progress.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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