Australia: Privacy law reform - put it on your 2013 to-do list!

Last Updated: 15 December 2012
Article by Michael Grosser and Christie Green

Most Read Contributor in Australia, July 2019

The collection, use and storage of personal information by Government Agencies and private sector organisations will change as a result of the passing of recent amendments to the Privacy Act 1988 (Cth) 1. Consequently these entities will now need to carefully consider their existing arrangements and those currently under negotiation to ensure compliance by March 2014. Non-compliance has been addressed by reforms providing increased powers to the Privacy Commissioner and civil penalties of up to $1.1 million for an offence involving 'serious or repeated interference with the privacy of an individual' by a body corporate.

Background

On 29 November 2012, the Federal Parliament passed the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 (Bill). The Bill amends the Privacy Act 1988 (Cth) and represents the Government's first stage response to 197 of 295 recommendations identified in the Australian Law Reform Commission Report (ALRC Report) No. 108 released four years ago.

The remaining 98 recommendations will form the Government's second stage response. 2

Apart from amending the Privacy Act 1988 (Cth) the reforms extend to a plethora of other Acts and Codes (for example, the Freedom of Information Act 1982 (Cth), the Telecommunications Act 1997 (Cth) and the Crimes Act 1914 (Qld)).

What are the amendments to the Privacy Act?

The list below deals with the amendments to the Act that we consider to be most relevant to our clients and the industries in which they operate.

  1. Australian Privacy Principles: It's a case of 'out with the old and in with the new' in the context of Privacy Principles. The Information Privacy Principles (IPP) for the public sector and the National Privacy Principles (NPP) for the private sector will be collectively replaced by the Australian Privacy Principles (APPs). The end result is one set of Privacy Principles for all sectors that deal with the collection, storage, security, use, disclosure and quality of personal information. We note the following APPs:
    • APP 7 - restricts the use or disclosure of personal information for direct marketing
      (unless one of the exceptions applies). Exceptions to this APP include:
    • Personal information other than sensitive information which has been collected from an individual or a third party – where an individual would reasonably expect the information collected to be used for direct marketing purposes and the individual has not opted out; and
    • Contracted service providers for the Commonwealth - if the organisation is a contracted service provider for the Commonwealth, that organisation may use or disclose personal information for the purpose of direct marketing if the organisation collected the information for the purpose of meeting (directly or indirectly) an obligation under the contract and the use or disclosure is necessary to meet (directly or indirectly) such an obligation.
    • APP 8 - disclosure of personal information off-shore
    • This APP now brings into the net Commonwealth Agencies in addition to organisations. The APP permits the disclosure (as opposed to the transfer) of personal information and ensures that any personal information disclosed overseas is subject to the Privacy Act 1988 (Cth).
      If personal information is sent to a 'related body corporate' outside of Australia, this APP will apply. However, the intention of the APP is not to apply where personal information is routed through servers outside of Australia.
      Conversely, if a third party accessed the personal information on a server located outside of Australia, this would constitute a disclosure (and breach by the organisation that provided the personal information to the overseas third party) for the purpose of the APP. In this regard, to ease an organisation's compliance and risk management burden there are a number of exceptions. For example:

    • Where the organisation has a 'reasonable belief' that the overseas recipient is subject to legal or binding obligations to protect personal information in at least a substantially similar way to the protection provided by the APPs; or
    • If the disclosure is required or authorised by law.
  1. Credit Reporting: Australia is moving away from a 'negative reporting system' to a 'positive' or 'comprehensive credit reporting' system for credit reporting purposes. This means additional credit history information about an individual will become available to the credit reporting industry. This 'positive' information includes additional information about an individual's ongoing credit arrangements (ie, maximum credit limit and type of credit). In addition this information extends to an individual's repayment history over two years (which is subject to exceptions). The interaction of the APP with the new credit reporting code will be expressly stated throughout the Act. In most cases, the credit reporting provision will replace the relevant APP.
  2. Interaction with Other Acts: Some of the general provisions under the APPs will be displaced by the specific provisions already dealt with under other Acts, for example the Spam Act 2003 (Cth) and the Do Not Call Register 2006 (Cth).
  3. Increased Commissioner Powers: The Commissioner may now conduct an assessment on a range of matters relating to an APP. The Commissioner may also apply to the Federal Court or the Federal Magistrates Court for an order that an entity has contravened a civil penalty provision and pay the Commonwealth a pecuniary penalty. The maximum penalty for a body corporate for serious and repeated interferences with privacy is up to $1.1 million.

New section 13G has been inserted which deals with the concept of a 'serious breach or repeated interferences' with the privacy of an individual'. Although not expressly defined, the Explanatory Memorandum to the Bill provides that the ordinary meaning of 'serious' and 'repeated interference' will apply. To assist Commonwealth Agencies and private sector organisations the Office of the Australian Information Commission will publish guidelines listing the criteria on which to pursue a civil penalty will be made which will hopefully provide further clarity as to the meaning of these concepts.

When will the amendments apply?

The key privacy provisions will not apply until 15 months after Royal Assent. As Royal Assent is expected to occur shortly, it seems likely these provisions will apply from March 2014. This will ensure the ICT industry and the Australian Information Commissioner have sufficient time to revise and implement changes to their systems and processes, and draft relevant guidelines and the new Credit Reporting Code of Conduct respectively.

The remaining provisions will apply from the day the Act receives Royal Assent. These provisions mostly deal with the commencement date, transitional provisions and legislative references to other Acts amended by the reforms.

We recommend you plan ahead to ensure your business efficiently complies with the reforms. A benefit of planning early can be the cost savings at the contract negotiation or renewal stages where you are considering contracting with a party for a term spanning over March 2014. Further, early compliance is now highly recommended given the increased powers of the Commissioner and the significant civil penalties payable in the event of a breach.

How can we help you?

Our team can proactively assist you to:

  • Review and advise on your current privacy policy, customer consents and disclosure statements and direct marketing material to ensure they conform with the reform. For example:
    • Whether the personal information you collect may or should be collected (ie, is it reasonably necessary for a particular purpose?)
    • How will you ensure the personal information is maintained in a secure environment?
    • What information is available to you regarding the regulatory privacy framework of overseas jurisdictions in which your clients/customers personal information is stored?
    • What is your retention policy? (ie, how long will you keep personal information before destroying or de-identifying it and how will you do this?);
  • Draft revised privacy policies, customer consents , disclosure statements and direct marketing materials to ensure they conform with the Act;
  • Prepare staff training and/or privacy and data protection process manuals (to ensure risks are identified and resolved before its too late);
  • Educate your staff about the reforms (including the consequences of a breach);
  • Implement a privacy self-audit program, including conducting an initial Privacy Impact Assessment of current business processes ; and
  • Review agreements (eg, outsourcing or cloud computing) where personal information will be held off-shore.

Footnotes

1 Explanatory Memorandum – Privacy Amendment (Enhancing Privacy Protection Bill) 2012, Addendum to the Explanatory Memorandum – Privacy Amendment (Enhancing Privacy Protection Bill) 2012 and Supplementary Explanatory Memorandum – Privacy Amendment (Enhancing Privacy Protection Bill) 2012.

2 No release date has been communicated at the time of writing.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Corrs Chambers Westgarth
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Corrs Chambers Westgarth
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions