Australia: Overview of the Australia Privacy Principles (APPs)

A guide to the new privacy landscape for the Commonwealth Government

Bottom line

The amendments tighten up the rules around how agencies can collect, use and disclose personal information.

For the first time, new Australian Privacy Principles will apply to both the private and public sectors.

There is a new requirement for agencies to develop detailed privacy policies and make them clear and easily accessible.

The Principles require a higher standard of protection to be afforded to "sensitive information".

The Privacy Commissioner will also be able to obtain enforceable undertakings from an organisation and apply to the court for a civil penalty order against agencies.

The main changes to the Privacy Act result from the replacement of the current Information Privacy Principles (IPPs) with the Australian Privacy Principles (APPs). Importantly, the APPs align more closely with the current National Privacy Principles, which apply to the private sector, than the IPPs.

This summary sets out the main requirements of the APPs.

APP 1—open and transparent management of personal information

Agencies are required to manage personal information in an open and transparent way. This includes:

  • having procedures and systems in place that are reasonable in the circumstances to enable compliance with the new principles
  • having an up-to-date privacy policy that is clearly expressed and readily available (usually on the agency's website), which contains information about
    • the kinds of information collected
    • how the information is collected
    • the purposes for collection
    • whether it is likely that the agency will disclose personal information to overseas recipients and, if so, the countries in which they are likely to be located.

APP 2—anonymity and pseudonymity

Where it is lawful and practicable, individuals must be given the option of not identifying themselves when dealing with an agency. Options for anonymity include using cloaking devices, such as pseudonyms.

APP 3—collection of solicited personal information

This principle sets out the standard for collection of personal information by agencies. These standards may differ between agencies.

An agency must only collect personal information that is "reasonably necessary for or directly related to" one or more of its functions or activities.

An agency must only collect "sensitive" information if the individual consents to the collection, and the information is reasonably necessary or directly related to one or more of its functions or activities.

There are exceptions to this general rule. These include:

  • where it is required or authorised by Australian law or a court order
  • in "permitted general situations"
  • in "permitted health situations", and
  • in cases where an enforcement body reasonably believes that the collection of the information is reasonably necessary.

Further, an agency must collect the information:

  • by lawful and fair means, and
  • directly from the individual concerned unless certain circumstances apply (for example, where it is unreasonable and impractical to do so).

APP 4—dealing with unsolicited personal information

When an agency receives unsolicited personal information it must determine whether or not it could have collected the information in line with APP 3. If:

  • it could—the other APPs apply to that personal information, or
  • it couldn't—then steps must be taken to either destroy the information or de-identify it so that it no longer contains personal information. This requirement doesn't apply if the information is contained in a Commonwealth record.

APP 5—notification of the collection of personal information

When an agency collects an individual's personal information it must take reasonable steps to provide notification of collection. This includes providing:

  • contact details of the APP entity
  • whether information has been collected from a third party or under an Australian law or court/tribunal order (and details about that collection)
  • the purpose of the collection
  • complaint-handling and access/correction information in the APP entity's privacy policy
  • disclosure information, including to overseas recipients, and
  • the consequences of not collecting the information.

APP 6—use or disclosure of personal information

If an agency holds personal information about an individual collected for a particular purpose, the entity must not use or disclose it for another purpose unless:

  • the individual has consented to the use or disclosure, or
  • the use or disclosure of the information falls within the listed exceptions.

Exceptions include:

  • where the secondary purpose is related to the primary purpose and the individual would reasonably expect it to be used for that secondary purpose. Where sensitive information is involved the secondary purpose must be "directly related" to the primary purpose
  • where required or authorised by an Australian law or a court order
  • in "permitted general situations"
  • in "permitted health situations", and
  • where an agency reasonably believes that the use or disclosure of the information is reasonably necessary for enforcement related activities conducted by, or on behalf of, an enforcement body.

An agency can disclose biometric information or templates to an enforcement body if it is disclosed in line with the Privacy Commissioner's guidelines.

APP 7—direct marketing

This principle doesn't apply to agencies unless they are engaging in commercial activities.

APP 8—cross-border disclosure of personal information

Before an agency discloses personal information to an overseas recipient, it must take reasonable steps to ensure the recipient doesn't breach the APPs (other than APP 1). This will generally require the agency to enter into a contractual relationship with the recipient.

Exceptions include:

  • the agency reasonably believes the recipient of the information is subject to a law or scheme substantially similar to the APPs
  • there is express informed consent to the disclosure of the information
  • the disclosure is required or authorised by Australian law
  • in "permitted general situations"
  • the disclosure is required or authorised by an international agreement relating to information sharing (to which Australia is a party), and
  • where the entity reasonably believes the disclosure of the information is reasonably necessary for one or more enforcement-related activities conducted by, or on behalf of, an enforcement body, and the overseas recipient is an equivalent type of body.

APP 9—adoption, use or disclosure of government-related identifiers

In general this principle doesn't apply to agencies.

APP 10—quality of personal information

An agency is required to protect the quality of the personal information it collects, uses and discloses, and take reasonable steps to ensure that:

  • personal information collected is "accurate, up-to-date and complete", and
  • personal information it uses or discloses is "accurate, up-to-date, complete and relevant".

APP 11—security of personal information

An agency must protect and in some cases destroy personal information. This obligation includes taking reasonable steps to:

  • protect personal information from misuse, interference and loss, and from unauthorised access, modification or disclosure, and
  • destroy or "de-identify" personal information that is no longer needed for a purpose for which it may be used or disclosed under the APPs, unless the information is in a Commonwealth record.

APP 12—access to personal information

An agency must provide access to an individual to their personal information subject to specific exceptions.

This principle does not apply where an agency is required or authorised to refuse to give access under the Freedom of Information Act 1982 or other legislation.

The principle sets out the procedural details for requests for access, such as:

  • time-frames
  • means of access
  • access charges, and
  • procedures for refusal to grant access.

APP 13—correction of personal information

An agency must take reasonable steps to correct personal information it holds on an individual if:

  • it believes the information is inaccurate, outof-date, incomplete, irrelevant or misleading, or
  • the individual requests that it be corrected.

An agency is not obliged to maintain the correctness of personal information it holds at all times. However, when personal information is used or disclosed, an agency may need to correct it before use or disclosure if it is satisfied the information is inaccurate, out-of-date, incomplete, irrelevant or misleading.

Related links

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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