Australia: New information privacy requirements - Australian Privacy Principles

Last Updated: 22 May 2014

From 12 March 2014 new, stricter, information privacy requirements came in to effect when the Privacy Act 1998 was amended by the Privacy Amendment (Enhancing Privacy Protection) Act.

The amendments have created new privacy principles, known as the Australian Privacy Principles (APPs), which replace both the Information Privacy Principles which apply to Federal Public Sector organisations and the National Privacy Principles which apply to Private Sector businesses.

The APPs introduce some new requirements as well as stronger sanctions for non-compliance. The previous exemption from coverage applicable to employee records and the current small business exemption (generally, businesses with a turnover of $3m or less) continue to apply. However, these exemptions may be repealed in the future.

Employers now need to review their privacy and information collection, storage and access of information policies and procedures to ensure compliance with the APPs.

Even though the employee records and small business exemption will continue, we recommend employers comply with the new principles as good practice.

The APPs are designed around the order of the personal information lifecycle. They are grouped as follows:

  • Part 1 - Consideration of personal information privacy
  • (APPs 1 and 2)
  • Part 2 - Collection of personal information
  • (APPs 3 - 5)
  • Part 3 - Dealing with personal information
  • (APPs 6 - 9)
  • Part 4 - Integrity of personal information
  • (APPs 10 and 11)
  • Part 5 - Access to, and correction of, personal
  • information (APPs 12 and 13)

The following is a summary of some of the more important and relevant points of the APPs:

APP 1 Open and transparent management of personal information

APP 1 requires an organisation to have an APP privacy policy that contains specific information, including the types of personal information collected, complaint procedures in the event of a breach and whether the organisation is likely to disclose information overseas.

also in this issue

  • A Watching Brief - Proposed changes to the Fair Work Act
  • When and What - The Support Person

New Information Privacy Requirements (cont)

APP 3 Collection of solicited personal information
APP 3 states that consent must be obtained before sensitive information can be collected from an individual and the collection must also be reasonably necessary for one or more of an organisation's functions or activities.

APP 4 Dealing with unsolicited personal information
APP 4 includes new obligations in relation to inadvertently collected personal information. If the information would not have been collected under APP 3 and is not contained in a Commonwealth record, the information must be destroyed or de-identified as soon as practicable.

APP 6 Use and disclosure of personal information
APP 6 introduces exemptions to the previous general requirement that an organisation only use or disclose personal information for the purpose for which the information was collected. The exemptions include when the use or disclosure is reasonably necessary to assist in locating a missing person, to defend or commence a legal claim or for the purpose of confidential dispute resolution.

APP 8 Cross boarder disclosures
APP 8 requires organisations to take reasonable steps to ensure an overseas recipient of information does not breach the APPs in relation to that information. In certain circumstances, a breach by an overseas recipient could be considered a breach of the APPs by the Australian organisation.

APP 10 Quality of personal information
APP 10 strengthens requirements for quality of information. When used or disclosed, personal information must be relevant, accurate, up to date and complete.

APP 12 Access to personal information
APP 12 increases access for the general public. Organisations must respond to requests for access within a reasonable time period and provide access in the manner requested if it is reasonable to do so. Written reasons for refusal to grant access must be provided as well as the mechanisms available to complain about the refusal.

APP 13 Correction of personal information
APP 13 provides that organisations must take reasonable care to correct personal information to ensure it is accurate and up to date and to take reasonable steps to notify organisations that have been provided with the information of a correction made, if requested by the individual.

If you would like any advice or assistance in relation to the application of the APPs to you as an employer, if you would like us to assist in the update of your organisation's Privacy Policy or would otherwise like advice on your privacy obligations as an organisation, we would be happy to assist you.

A Watching Brief - Proposed Changes to the Fair Work Act

As most of you will recall, in the lead up to the Federal election last year the Coalition released its Industrial Relations Policy which outlined proposed changes to the Fair Work Act 2009 ( FW Act ).

The Federal Government has now introduced the Fair Work Amendment Bill 2014 ( Amendment Bill ) to Parliament which seeks to make the proposed changes to the FW Act as outlined in the Policy.

A number of the proposed changes are outlined below.

Extending a period of unpaid parental leave
Under the FW Act, employers may refuse an employee's request to extend a period of parental leave for a further period of up to 12 months (capped at 24 months) on reasonable business grounds. The current FW Act requirement is that any request, and any refusal, must be in writing.

A Watching Brief - Proposed Changes to the Fair Work Act (cont)

The Amendment Bill seeks to insert an additional requirement on employers before refusing any such request. Namely, the proposed amendment requires an employer to give an employee a reasonable opportunity to discuss the request before refusing it. The discussion may be via telephone, but not sms or email.

Payment for unused annual leave
The FW Act currently requires annual leave paid out on termination of employment to be paid at the rate that would have been payable if the employee had taken the period of leave. In the past, this has caused confusion as some modern awards require loading to be paid during a period of leave but excluded from being paid on termination of employment (in breach of the FW Act provision).

The Amendment Bill proposes to clear up this confusion by amending this section so that payment for unused annual leave is to be made at the employee's base rate of pay as applicable immediately before dismissal (subject to any more beneficial entitlement in an applicable modern award, enterprise agreement or employment contract). Base rate of pay does not include penalties, loadings, allowances or any other separately identifiable amounts.

Taking or accruing leave while receiving workers' compensation
Under the Amendment Bill, an employee who is absent from work and receiving workers' compensation will not be able to take or accrue leave under the FW Act during the compensation period.

Currently, whether or not leave is able to be taken or accrued during any period of workers' compensation is per the relevant state legislation. The changes under the Amendment Bill will apply regardless of any provision in the state based legislation.

Transfer of business
The Amendment Bill proposes that there will not be a transfer of business where:

  • an employee becomes employed by an associated entity of their old employer; and
  • the employee sought out that opportunity on their own initiative prior to the termination of their employment with the old employer.

This change is in an attempt to avoid applications having to be made to the Commission to avoid the transfer of industrial instruments between associated entities where an employee seeks out the opportunity.

Fair Work Commission (FWC) hearings and conferences

The Amendment Bill proposes to allow the Commission to dismiss an unfair dismissal application without holding a hearing where:

  • the unfair dismissal application is frivolous or has no reasonable prospects of success; or
  • where the applicant has unreasonably failed to attend a conference or hearing, comply with a direction or order or discontinue an application after a settlement agreement has been concluded.

The Amendment Bill mandates that before exercising this power, the Commission must invite all parties to provide further information to the Commission to show whether the dismissal of the application is warranted.

Right of Entry
The Amendment Bill proposes to remove the recent changes that commenced on 1 January 2014 and further amend the right of entry provisions in the FW Act by: requiring that permit holders must (once again) comply with reasonable requests by employers to conduct interviews or hold discussions in particular rooms or areas of a work site and to take particular routes to reach those areas;

  • extending the power of the Commission to deal with disputes;
  • limiting the permit holder's entry rights to hold discus - sions to premises:
    • where the permit holder's organisation is covered by an enterprise agreement applying to work performed on the premises; or
    • the permit holder is invited by a person who works on the premises and is a member or prospective member of the permit holder's organisation; and
  • removing the obligations on an employer or occupier to organise transport and accommodation arrange ments to assist permit holders to exercise entry rights at work sites in remote areas.

Individual Flexibility Arrangements
The Amendment Bill proposes to make the following changes to individual flexibility arrangements (IFA):

  • requiring flexibility terms in enterprise agreements to permit flexibility about all five minimum matters listed in the model flexibility term (namely, arrangements about when work is performed, overtime rates, penalty

A Watching Brief - Proposed Changes to the Fair Work Act (cont)

  • rates, allowances and leave loading);
  • increasing the period of notice for terminating the IFA from 28 says to 13 weeks;
  • inserting a legislative note which states that benefits other than a payment of money may be taken into account when considering whether an employee is better off overall under the IFA;
  • excusing an employer from contravening a flexibility term if the employer reasonably believed that the requirements of the term had been complied with; and
  • requiring employees that are entering into an IFA to provide a written statement indicating why they believe the IFA meets their needs and leaves them better off.

When will these changes come into effect?
These changes have a while to go before they are imple - mented. The Explanatory Memorandum to the Amend - ment Bill indicates that there will be a Senate inquiry into the Amendment Bill and the proposed changes will be reviewed during the Productivity Commission review scheduled to take place this year.

The Amendment Bill is unlikely to be passed until after 30 June 2014, when the composition of the Senatechanges.

In our regular updates we do our best to keep you updated and informed in the area of workplace relations. If you have a particular issue which is of interest to you and which you would like us to consider writing about in one of our upcoming editions, please always feel free to contact either Tim Greenall ( or Michelle Dawson ( with your ideas

When and What - The Support Person

Most savvy employers (or, in the least, their HR officers or advisers) will know that there is an obligation upon employers to let employees bring a support person with them to any discussions that could lead to a dismissal. Some employers even offer employees the opportunity to bring a support person to any disciplinary meeting. Often, employers do this out of an abundance of caution (and in some specific and unique instances that is advisable). More regularly, however, employers do this because of a misunderstanding that the obligation to let employees have a support person in meetings extends to all disciplinary meetings. To be clear, the general obligation (subject, as always, to any disciplinary policy specific to an employer) is to permit a support person only if the discussions could lead to a dismissal.

Another common question that we are asked by our clients is whether a support person is entitled to take an active role in the discussions. Generally, a support person has a role of precisely what the name would suggest - support. That is, to provide emotional support. A support person is not entitled to act as an advocate and is not entitled to speak on the employee's behalf. This view was recently confirmed by a Full Bench of the Fair Work Commission in VATE v de Laps [2014] FWCFB 613, a case where it was alleged (granted, as a small part of the overall proceeding) that an Applicant had been denied procedural fairness in circumstances where (among other things) an employer had insisted upon a support person taking a silent and not an advocacy role in discussions. Of course, discretion should be exercised when applying this general rule as to the role of a support person. In particular, regard should be had to any employer-specific disciplinary policy and also by reference to the individual employee (for instance where an employee is a minor or where there is a language or cultural barrier).

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. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.

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)
Related Video
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.