Data protection in Australia is currently a mix of Federal and State/Territory legislation. The Federal Privacy Act 1988 (Cth) and its National Privacy Principles applies to private sector businesses and its Information Privacy Principles apply to all Commonwealth Government and Australian Capital Territory Government agencies ("Privacy Act").
Australian States and Territories (except for Western Australia and South Australia) each have their own data protection legislation applying to State Government agencies (and private businesses interaction with them). These acts are:
- Information Act 2002 (Northern Territory);
- Privacy and Personal Information Protection Act 1998 (New South Wales);
- Information Privacy Act 2009 (Queensland);
- Personal Information and Protection Act 2004 (Tasmania); and
- Information Privacy Act 2000 (Victoria).
There is also various other State and Federal legislation that relates to data protection. For example, the Telecommunications Act 1997 (Cth), the National Health Act 1953 (Cth), the Health Records and Information Privacy Act 2002 (NSW) and the Workplace Surveillance Act 2005 (NSW) all impact privacy/data protection for specific types of data or for specific activities. Our focus here, however, is on the application of the Privacy Act to private sector businesses.
The Privacy Amendment (Enhancing Privacy Protection) Act 2012 ("New Act") was passed by the Australian parliament in December 2012 and comes into force from March 2014. The New Act contains significant reforms to the Privacy Act, including replacing the National Privacy Principles for the private sector and Information Privacy Principles for Commonwealth and Australian Capital Territory Government agencies with a single consolidated set of principles referred to as the Australian Privacy Principles ("APPs"). The New Act also significantly strengthens the powers of the Australian Information Commissioner to conduct investigations and ensure compliance with the amended Privacy Act.
Given the New Act does not come into force until March 2014, here we outline the obligations currently imposed under the Privacy Act and highlight only those key new obligations which will come into force from March 2014.
DEFINITION OF PERSONAL DATA
Personal Data (which is referred to as 'personal information' in Australia) means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
DEFINITION OF SENSITIVE PERSONAL DATA
Sensitive Personal Data (which is referred to as 'sensitive information' in Australia) means:
Information or an opinion about an individual's:
- racial or ethnic origin;
- political opinions;
- membership of a political association;
- religious beliefs or affiliations;
- philosophical beliefs;
- membership of a professional or trade association;
- membership of a trade union;
- sexual preferences or practices;
that is also personal information; or
- health information about an individual; or
- genetic information about an individual that is not otherwise health information.
The New Act expands the definition of 'sensitive information' to also include:
- biometric information that is to be used for the purpose of automated biometric verification or biometric identification; and
- biometric templates.
NATIONAL DATA PROTECTION AUTHORITY
The Office of the Australian Information Commissioner is the national data protection regulator responsible for overseeing the Privacy Act.
Australia does not maintain a register of controllers or of processing activities as in Europe. There is no requirement under the current data protection regime (i.e. the Privacy Act) for an organisation to notify/report to the Office of the Australian Information Commissioner on the processing of personal information.
DATA PROTECTION OFFICERS
There is no requirement for organisations to appoint a data protection officer, but it is good and usual practice.
COLLECTION AND PROCESSING
An organisation must not collect personal information unless the information is necessary for one or more of its functions or activities. The New Act further limits collection of personal information by requiring it to be "reasonably necessary" for one or more of the organisation's functions or activities.
At or before the time personal information is collected, or as soon as practicable afterwards, an organisation must take reasonable steps to make an individual aware of:
- its identity and how to contact it;
- why it is collecting (or how it will use the) information about them;
- to whom it might give the personal information;
- the fact that the individual can obtain access to their personal information;
- any law requiring the collection of personal information; and
- the main consequences (if any) for the individual if all or part of the information is not provided.
Under the New Act the organisation must also take reasonable steps to make an individual aware of:
- whether the organisation is likely to disclose their personal information to overseas recipients and, if so, the countries in which such recipients are likely to be located.
An organisation must not use or disclose personal information about an individual unless:
- it is for the primary purpose of collection or a secondary purpose related to (and, in the case of sensitive information, directly related to) the primary purpose of collection and the individual would reasonably expect the organisation to use or disclose the information for that secondary purpose;
- the individual consents;
- the information is not sensitive information and disclosure is for direct marketing and it is impracticable to seek the individual's consent and (among other things) the individual is told that they can opt out of receiving marketing from the organisation;
- it is for research or statistics relevant to public health or safety;
- there is a serious threat to health and safety and using or disclosing personal information will help reduce that threat; or
- it is required or authorised by law or on behalf of an enforcement agency.
Under the New Act, in the case of use and disclosure for the purpose of direct marketing, organisations are required to also ensure that:
- each direct marketing communication provides a simple means by which the individual can opt-out; and
- the individual has not previously requested to opt-out of receiving direct marketing communications.
Where "sensitive information" is processed there are additional protections under the Privacy Act which generally provide that an organisation is not allowed to collect sensitive information from an individual unless certain limited requirements are met, including that:
- the individual has consented (under the New Act, as well as having the consent of the individual the sensitive information must be reasonably necessary for one or more of the entity's functions or activities);
- collection is required or authorised by law;
- the information is required to establish or defend a legal or equitable claim; or
- the individual is incapable of consenting and the information is needed because of a serious and imminent threat to the life or health of the individual.
An organisation must, on request by an individual, give access to the personal information (and the ability to correct inaccurate information) that is held about the individual unless particular circumstances apply which allow the organisation to limit the extent to which access is given. These include emergency situations, specified business imperatives and law enforcement or other public interests.
Personal information may only be transferred outside of Australia or to a different organisation (including a parent company) where:
- the organisation reasonably believes that the information is subject to a law, binding scheme or contract which effectively provides for no less protection than the Privacy Act (under the New Act there can be no reliance on contractual provisions and the organisation must also ensure that there are mechanisms that the individual can access to take action to enforce the protections of that law or binding scheme);
- the individual consents to the transfer (under the New Act the organisation must, prior to receiving consent, expressly inform the individual that if he or she consents to the disclosure of the information the organisation will not be required to take reasonable steps to ensure the overseas recipient does not breach the APPs);
- the transfer is necessary for the performance of a contract between the individual and the organisation, or for the implementation of pre contractual measures taken in response to the individual's request (under the New Act personal information will no longer be able to be transferred outside of Australia relying on this);
- where the transfer is for the benefit of the individual, it is impractical to obtain their consent and if it were practical, they would be likely to give their consent (under the New Act personal information will no longer be able to be transferred outside of Australia relying on this); or
- where the organisation has taken reasonable steps to ensure that the information will not be held, used or disclosed inconsistently with the Privacy Act (under the New Act, where the organisation transfers data to an overseas recipient on this basis, the organisation will remain liable for any breach of the APPs by the overseas recipient).
Any personal information that an organisation retains must have appropriate security measures in place to protect that information from misuse and loss and from unauthorised access, modification or disclosure. An organisation must also take reasonable steps to destroy or permanently de identify personal information if it is no longer needed.
An organisation that breaches the Privacy Act is currently under no legal obligation (and it is not generally current practice) to report that breach to the affected individual(s) or the Australian Information Commissioner.
The Australian Information Commissioner is responsible for the enforcement of the Privacy Act and will investigate an act or practice if the act or practice may be an interference with the privacy of an individual and a complaint about the act or practice has been made.
Under the New Act the Australian Information Commissioner will also be able to investigate breaches of the new APP 1 regarding "open and transparent management of personal information" on its own initiative (i.e. where no complaint has been made).
After investigating a complaint, the Australian Information Commissioner may dismiss the complaint or find the complaint substantiated and make declarations that the organisation rectify its conduct or that the organisation redress any loss or damage suffered by the complainant. Under the New Act fines of up to A$220,000 for an individual and A$1.1 million for organisations may be requested by the Australian Information Commissioner and imposed by the Courts for serious or repeated interferences with the privacy of individuals.
The sending of electronic marketing (which is referred to as 'commercial electronic messages' in Australia) is regulated by the SPAM Act 2003 (Cth) ("SPAM Act").
Under the SPAM Act a commercial electronic message must not be sent without the prior consent of the recipient. In addition, each electronic message (which the recipient has consented to receive) must contain a functional unsubscribe facility to enable the recipient to opt-out from receiving future electronic marketing.
A failure to comply with the SPAM Act (including unsubscribing a recipient that uses the unsubscribe facility) may have costly consequences, with repeat offenders facing penalties of up to A$1.1 million per day.
E - PRIVACY AND COOKIE COMPLIANCE
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