Australia: The Australian Privacy Act Amendments will Significantly Impact Federal Government Agencies!

Privacy Update (Australia)
Last Updated: 28 May 2013
Article by Alec Christie

As noted in earlier updates, the Privacy Amendment (Enhancing Privacy Protection) Act 2012 ("Amendment Act") significantly increases the obligations on both Federal Government agencies and private businesses that collect or deal with personal information in Australia or from Australian residents from 12 March 2014. These amendments to the Privacy Act include the introduction of the new Australian Privacy Principles ("APPs") which apply to both Government agencies and private businesses: doing away with the separate IPPs for Government agencies and NPPs for business.

The real "change" that we believe has been introduced by the Amendment Act and the APPs is the change in the approach and attitude (together with the increased and new powers) of the Privacy Commissioner to that of a more aggressive regulator keen to exercise the new powers and to police and enforce the provisions of the Privacy Act and the APPs!


Soon after the passing of the Amendment Act, in response to questions about the Privacy Commissioner's new and extended powers and the new significant fines for serious or repeated invasions of privacy (both applicable to Government agencies), the Privacy Commissioner (Mr Timothy Pilgrim) flagged his future intentions by stating:

"From the commencement of the new laws, I will be able to accept enforceable undertakings and seek civil penalties ... I will not shy away from using these powers in appropriate cases".

As noted in a number of recent guidance documents issued by the Office of the Australia Information Commissioner ("OAIC"), there are a number of specific areas of compliance concern and focus in the immediate future for the Privacy Commissioner including information security, de-identification/deletion of personal information and the app/mobile environment.


The Privacy Commissioner has been given significantly increased powers to, among other things:

  • seek civil penalties (up to $340,000 for individuals and $1.7 million for an agency) in cases where there is a serious or repeated interference with an individual's privacy;
  • audit the handling of personal information by agencies and undertake "own motion"investigations; and
  • make determinations following investigations (even if the investigations is on its "own motion") and apply to the Federal Court to enforce such determinations.


Most of the APPs are familiar to the business community as they are similar to the existing NPPs. However the new APPs, as compared to the existing IPPs, are a significant leap in the obligations imposed on Government agencies. Below we highlight the key changes from the IPPs which we believe will be of particular interest or concern for agencies:

APP 1 Open and transparent management of personal information: APP 1 introduces new requirements for agencies to have a clearly expressed and to maintain an up-to-date policy (including the required information specified in APPs 1 and 5) detailing the management of personal information by the agency. Agencies must also take reasonable steps to implement practices, procedures and systems that will ensure the agency's compliance with the APPs.

However, agencies no longer need to submit annually to the Privacy Commissioner details of the types of personal information they hold, as they currently do under IPP5.

APP 2 Anonymity and pseudonymity: Where practical and unless otherwise required by law, agencies must now allow individuals to interact with them anonymously or by using a pseudonym.

APP 3 Collection of solicited personal information: Obligations are imposed on agencies for the first time under the APPs in respect of sensitive information. Under APP 3 an agency may not collect sensitive information unless the individual consents to the collection and the information is reasonably necessary for an activity or function of the agency or if the collection is authorised by law (or one of the other limited exceptions applies). In addition, an agency must only collect personal information directly from the individual, unless the individual has consented to collection from another person, the agency is required or authorised by law (or a Court order) to do so or it is unreasonable or impractical to collect it from the individual.

APP 4 Dealing with unsolicited personal information: Under APP 4, for the first time for both agencies and businesses, there are now obligations on the receipt of unsolicited personal information. On receipt of unsolicited personal information an agency must now determine whether it is permitted to collect such information under APP 3 and, if so, APPs 5 to 13 and the agency's privacy policy apply to that information. However, if the agency determines that the unsolicited information could not have been legitimately collected by the agency under APP 3, the information is not contained in a Commonwealth record and provided it is lawful and reasonable to do so, the agency must destroy or de-identify that information as soon as practical.

APP 6 Use and disclosure of personal information: APP 6 imposes limits on an agency's use of any sensitive information collected. In particular, sensitive information is only to be used for the primary purpose of collection unless the secondary purpose is consented to by the individual or is directly related to the primary purpose and the individual would reasonably expect the agency to use or disclose the sensitive information for that secondary purpose.

However, APP 6 also introduces new wider exceptions which permit the use and disclosure of personal information by an agency for secondary purposes.

APP 7 Direct marketing: APP 7 regulates the use and disclosure of personal information for the purpose of direct marketing by agencies where the agency is listed in Division 1 of Part 2 of Schedule 2 to the Freedom of Information Act 1982 in relation to their commercial activities.

APP 8 Cross-border disclosures: APP 8 and the new Section 16C of the Privacy Act introduce a new accountability approach in relation to an agency's cross-border disclosures of personal information. Before disclosing personal information to an overseas recipient (eg a third party processor) the agency must take reasonable steps to ensure that the overseas recipient does not breach the APPs in relation to that information. Generally, any act done or practice engaged in by the overseas recipient that would be a breach of the APPs if it was done by the agency will be taken to be a breach of the APPs by that agency. While there are a number of exceptions to and ways to exclude this liability, the most practical way is to obtain the clear consent of the individual to the transfer of the information overseas and to the consequences of such consent.

APP 10 Quality of personal information: APP 10 mirrors the requirements of IPP 3 and, in addition, also requires agencies to take reasonable steps to ensure the information it collects is accurate, up-to-date and complete.

APP 11 Security of personal information: In addition to the existing obligations on an agency to take reasonable steps to protect personal information it holds from misuse, loss and unauthorised access, modification and disclosure, APP 11 includes a new obligation to take reasonable steps to protect the personal information from "interference". APP 11 also imposes a new requirement on agencies to take reasonable steps to destroy or de-identify information if the agency no longer needs the information for any authorised purpose, unless the agency is required by law (or by Court order) to retain that information or it is contained in a Commonwealth record.

APP 12 Access to personal information: The obligations under APP 12 are similar to those of IPP 6 except that an agency must respond to a request for access within 30 days and, if the agency decides not to give an individual access, an agency must now provide written reasons for the refusal to provide access and advise the individual of the mechanisms available to complain about the refusal to provide access.

APP 13 Correction of personal information: APP 13 is in similar terms to the provisions of IPP 7, except that APP 13 imposes an obligation on the agency to respond to a correction request within 30 days, provide written reasons for the refusal to correct and advise of the mechanisms available to complain about the refusal. Also if the agency corrects personal information about an individual that it previously disclosed to another entity then, on request, it is required to take reasonable steps to notify the other entity of that correction.


The main steps your agency can take now to prepare for the new Privacy Act provisions introduced by the Amendment Act and the new APPs include examining and determining:

  • what personal and sensitive information your agency currently collects, the purpose(s) for which it collects that information and how it collects such information;
  • whether your privacy policy and the processes for notification of it/obtaining consent to it comply with the APPs. We expect that no agency's existing Privacy Policy and processes will comply with the APPs given the number of significant additional obligations imposed by the new APPs;
  • if the direct marketing provisions will apply to your agency and, if so, what your currentpractices and processes are with respect to direct marketing and if they comply with the APPs;
  • whether your internal practices with respect to handling personal information (including security measures) are complaint with the APPs and the recent OAIC guidances; and
  • whether your existing privacy training for agency personnel is sufficient for the new APPs.


Please do not hesitate to contact a member of our dedicated privacy team if we can assist your agency with the review/audit of your current policies and practices or to assist your agency to comply with the new privacy regime effective from 12 March 2014.

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.

DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to

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

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

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”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.