Australia: Be prepared for the changes to the Privacy Act

Privacy Alert: 31 January 2014

In this Alert, Hayden Delaney and Michele Davis discuss the implications that the upcoming legislative changes to privacy law will have on agencies and organisations, after the amendments to the Privacy Act 1988 (Cth) (Privacy Act) come into force on 12 March 2014, and outline what steps organisations need to take to ensure compliance.

Key take away points

  • The new laws will apply to both government agencies and organisations. Organisations include individuals, body corporate, partnerships, unincorporated associates and trusts. There are some limited exemptions, including for "small business operators" discussed below.
  • Agencies and organisations will need to have compliant privacy policy, collection statements, operational policies and procedures in place on or before 12 March 2014. These documents need to be specific to the entity, not "cookie-cutter" templates.
  • Determining what information held by that entity will be considered "personal information" is a key consideration when implementing new policies and procedures.
  • It is vital that agencies and organisations determine what uses and disclosures it makes of personal information.
  • Agencies and organisations should also be aware of the significant changes to the credit reporting requirements under the Privacy Act.

Amendments to the Privacy Act

The Privacy Act regulates ways in which certain agencies and organisations collect, use and disclose personal information within Australia. Privacy law has been the subject of some significant recent reforms. The Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Privacy Amendment Act) will see new privacy principles applying to both private sector organisations and government agencies, which will significantly affect the collection, handling and disclosure of personal information.

The Privacy Amendment Act has a substantially stricter compliance and penalty regime and will have a particularly significant impact on organisations that hold or collect personal information, engage in direct marketing, use or provide cloud services, or disclose personal information outside of Australia.

The amendments become operative on 12 March 2014, as a transition period of 15 months has been allowed for private sector organisations and government agencies to ensure compliance with the amended legislation. For the purposes of this Alert, further reference to the Privacy Act will include the amendments which will become operative by virtue of the Privacy Amendment Act.

Compliance with the new privacy law

In preparation for the upcoming legislative changes, agencies and organisations will need to ensure they have in place a compliant privacy policy, collection statements, operational policies and procedures. These requirements are detailed within the Australian Privacy Principles (APPs). The overarching principle of the APPs is the requirement for entities to manage personal information in an open and transparent way; so it is advisable to keep this requirement in mind when undertaking any activity concerning personal information.

The new laws will apply to both government agencies and organisations. Organisations include individuals, body corporate, partnerships, unincorporated associates and trusts. There are a number of limited exemptions. Of note is the "small business operator" exemption, designed so as not to overburden small businesses with the compliance burden. In general, a small business operator is a business with an annual turnover of $3,000,000 or less for a financial year, unless an exception applies. Common exceptions include businesses that provide a health service and hold health information (an employee record) and businesses that disclose or collect personal information for a benefit, service or advantage.

The APPs require entities which are governed by the Privacy Act to have and maintain an up-to-date privacy policy, as well as implement practices, procedures and systems which ensure compliance with the APPs.

In order to ensure that the appropriate privacy policies and procedures are implemented by an agency or organisation, one of the most important matters that will need to be assessed will be determining what information held by that entity will be considered "personal information". The definition of personal information has been amended to include:

"information or an opinion about an identified individual, or an individual who is reasonably identifiable: (a) whether the information or opinion is true or not; and (b) whether the information or opinion is recorded in a material form or not".

It is important that each entity's policies accurately detail the types of personal information collected, along with the uses and intended disclosures of that personal information by that entity. In order to do so, each entity will need to undertake a "factual" due diligence process to discern the different types of information it may be collecting from individuals. The results of this due diligence will then assist in providing each entity with a privacy policy that is specific to that entity, along with relevant policies, practices and procedures that will need to be implemented on an ongoing basis to ensure compliance with the Privacy Act.

This continuous obligation means that entities will need to take reasonable steps to proactively keep practices, procedures and systems relevant and timely, and not merely updated on a reactive basis. This obligation requires that reasonable privacy protections are actually built in to the design of information systems, a concept known as "privacy by design". What is considered reasonable will depend on the specifics of the organisation, such as its nature and size, as well as the nature of the personal information held, as well as the anticipated consequences if a privacy breach was to occur. A due diligence exercise should be undertaken to discern the extent of these risks.

Some practical steps that organisations can take in the design of their information systems include:

  • having procedures for identifying privacy risks at each stage of the information cycle;
  • having security systems in place to protect the integrity of personal information; and
  • ensuring that assessments are conducted for new projects to discern how personal information is collected, handled, disclosed and stored by the entity.

Periodic reviews of the adequacy and currency of the entity's documentation and information systems would also be essential in keeping the privacy practices of the entity current and up to date.

Once an entity has classified its data, determined the types of personal information it has collected, and has established the systems that will ensure ongoing compliance and protection of personal information, the entity will then need to determine what uses and disclosures it makes. The reasons for collecting specific personal information will need to be considered in terms of understanding what it can be used for, as well as the disclosures the entity intends on making of that personal information.

The requirement for an individual to be notified of the collection of his personal information by an entity has also been reinforced as a result of the amendments. Specific details regarding the reasons for the collection, and the uses and intended disclosure of personal information for that specific collection event will need to be incorporated into a collection notification statement. This means that the same collection notification statement should only be used to the extent that the reasons for the collection, uses and disclosures of personal information by the entity are the same.

In addition, as part of the due diligence process, each entity will also need to ascertain whether it is presently disclosing or intending to disclose any personal information it holds outside of Australia to any third parties (such as a data hosting centre) or related bodies corporate. The APPs require an entity that discloses personal information outside of Australia to take reasonable steps to ensure that the overseas recipient, to whom the personal information is disclosed, does not breach the APPs.

There are exceptions to this requirement. If an entity does not fall within any of the exceptions prior to disclosing any personal information outside of Australia, the entity will be held to be liable for any breaches of the Privacy Act by the overseas recipients. This imposes considerable risk on Australian entities and steps should be taken to mitigate those risks.

Another significant change to the landscape of privacy law is in relation to direct marketing communications. The APP concerning direct marketing expressly prohibits the use or disclosure of personal information for the purposes of direct marketing. There are, however, exceptions to this prohibition. The main exceptions consider whether the individual would reasonably expect to receive direct marketing or has consented to receive the direct marketing, or whether it is impracticable to obtain consent.

The exceptions also require the direct marketing communication to provide a simple means by which the individual can opt out of receiving the communication. In relation to sending any direct marketing to an individual who has not provided their personal information (or consent) directly to the entity sending the direct marketing, the communication must also include a prominent statement drawing the individual's attention to the fact that the individual can opt out of receiving such communication.

Entities will also be required to give individuals the option of not identifying themselves, or of using a pseudonym, when dealing with the organisation in relation to a particular matter unless it is impracticable for the entity to deal with individuals in this manner.

Significant changes have also been incorporated in relation to the credit reporting requirements under the Privacy Act. The changes to the credit reporting are complex. Specific advice should be sought by credit licensees in order to ascertain how these changes will affect them.

Failure to comply with the Privacy Act, after 12 March 2014, can result in penalties of up to $340,000 for individuals or up to $1.7 million for corporations.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

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

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

Similar Articles
Relevancy Powered by MondaqAI
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”

Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
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 (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

To Use 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.


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.


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