Australia: Privacy and APPs and sporting organisations

Last Updated: 5 November 2014
Article by Mark Fatharly

What does the Privacy Act regulate?

The Privacy Act 1988 (Cth) regulates standards, rights and obligations relating to the collection, use, storage and maintenance of personal information and sensitive information about an individual by government and non-government agencies.

Personal information is information or an opinion, true or not, in any form, about a person who is identifiable or reasonably identifiable. Examples include name, contact details, birth date, employment, bank account details, comments, opinions, photographs, video footage, news articles, sports reports, information collected through cookies on a website, and personal information collected using ID scanners or other security measures.

Sensitive information is a type of personal information. Examples include health information, racial or ethnic origin, political opinions or political associations, religious or political beliefs or affiliations, criminal records.

Who Does It Apply To?

Australian government agencies, all businesses and not-for-profit agencies with a turnover of more than $3million must comply with the Act with some exceptions.

Some small business operators with a turnover of less than $3 million must comply with the Act, eg:

  • Health service providers: medical and health professionals, pharmacies, therapists
  • Gyms and weight loss clinics;
  • Child care centres;
  • Private schools and private tertiary institutions; and
  • Businesses or organisations that opt-in.

Entities which must comply are referred to in the Act as APP entities.

Who Doesn't It Apply To?

The Act does not apply to:

  • State or Territory government agencies, or their hospitals (with some exceptions);
  • Individuals acting in a personal capacity;
  • Public schools and most universities;
  • In some circumstances, employee records;
  • Small businesses, unless they must comply for reasons above; and
  • Media organisations and political parties or representatives.

Recent Changes to the Privacy Act

On 12 March 2014 significant amendments were made to the Act, including creation of 13 Australian Privacy Principles ("APPs"). Entities bound by the Act must comply with the APPs, having a privacy policy and procedures in place for maintaining compliance, as well as consequences and significant penalties for breach of obligations.

Key changes relevant to Not-For-Profits Sporting Associations?

  • The APPs apply to Australian government agencies and other APP entities rather than the previous Information Privacy Principles for government and National Privacy Principles for business.
  • Some APPs significantly differ to the previous principles, particularly APPs 7 and 8.
  • The Office of the Australian Information Commissioner ("OAIC") has increased powers, including to accept enforceable undertakings relating to non-compliance, investigate and seek penalties.
  • Acts of committee members are taken to be of the association. Committee members can breach the Act and be liable to civil penalties (s98B).

Australian Privacy Principles (APPs)

What Is Required To Comply?

The APPs are principles. There is no one way of complying with each principle. Each APP entity needs to adapt their compliance approach to their circumstances. The more stringent obligations apply to those handing sensitive information.

The following is a summary only of key aspects of the APPs. The whole of the APPs should be read.

APP 1- Open and transparent management of personal information

APP entities must:

  • manage personal information in an open and transparent way;
  • take reasonable steps to implement practices, procedures and systems to ensure compliance; and
  • have a clearly expressed and up to date privacy policy. Having it on a website is sufficient.

APP 2 – Anonymity and pseudonymity

Unless impractical, authorised or required by law, where possible individuals should have the option of not identifying themselves when dealing with an APP entity.

APP 3 – Collection of solicited personal information

Personal information should only be collected where reasonably necessary for the entity's functions or activities, and then directly from the individual. An APP entity must not collect sensitive information unless the individual consents and it is reasonably necessary for a function or activity of the entity.

A non-profit organisation may collect sensitive information if the information relates to the activities of the organisation and the information relates solely to members of the organisation or individuals with regular contact with the organisation in connection with its activities, eg collecting health information which may impact on a participant's capacity to participate or medic alert type information in case of emergency.

APP 4 – Dealing with unsolicited personal information

If unsolicited personal information is received which it could not have collected, it must be destroyed or de-identified. If it could have been collected, APPs 5 – 13 apply to that information.

APP 5 – Notification of collection of personal information

Notification of collection of personal information must be provided to an individual about the time of collection by reasonable steps, including details about the entity. Disclosure can be contained in the privacy policy.

APP 6 – Use or disclosure of personal information

Personal information collected for one purpose ("primary purpose") may not be used for a secondary purpose without the individual's consent or unless exceptions apply.

APP 7 – Direct Marketing

Personal information may not be used by an APP entity for direct marketing unless an exception applies. Sensitive information can only be used for direct marketing with consent.

APP 8 – Cross-border disclosure of personal information

Before personal information is disclosed to an overseas recipient (incl. cloud storage) reasonable steps must be made to ensure the recipient does not breach the APPs or that there is a similar regime in place or the individual agrees.

APP 9 – Use of government identifiers

Government identifiers, eg Tax File Numbers, must not be used or disclosed unless, for eg, it is reasonably necessary to identify the individual for the organisation's activities or authorised by law.

APP 10 – Quality of personal information

Reasonable steps must be taken to ensure personal information it collects is accurate, complete and up to date.

APP 11 – Security of personal Information

Reasonable steps must be taken to protect information collected from misuse, interference, loss, unauthorised access or modification or disclosure, and to destroy or de-identify information no longer required.

APP 12 – Access to personal Information

Subject to exceptions, an APP entity must give an individual access to the personal information held about them on request and have a process for dealing with the request.

APP13 – Correction of personal information

Reasonable steps must be taken to correct incorrect personal information.

What Does This Mean For Not-For-Profits Sporting Associations?

If you are not an APP entity, or not sure?

  • Carefully consider the Privacy Act (section 6) and APPs to ensure that you are not required to be compliant.
  • Do you wish to opt-in to voluntarily be an APP entity? If so there is an opt-in register. Benefits may include increased confidence and trust from members or those providing personal information

Are you an APP entity?

APP entities must comply with the Privacy Act and the APPs. To comply:

  • Review what personal information or sensitive information is handled.
  • Review how it is collected, disclosed, stored, kept secure, destroyed securely, who has access to it.
  • Are higher protection levels provided for sensitive information such as health information? What sensitive information do you collect and why? Who do you give it to?
  • Consideration must be given to implementing new practices, systems, documents, procedures to ensure compliance.
  • Is it possible for interaction with you anonymously or by pseudonym, without identification?
  • Review any existing privacy policy or draft one. Make sure references to National Privacy Principles are changed to Australian Privacy Principles and content updated to comply with the APPs.
  • Make your privacy policy available in an appropriate form, for free. Website is easiest, otherwise in printed form provided.
  • Consider having membership forms refer to the privacy policy and acknowledging/accepting the policy terms. Usually the age of consent would need to be at least 15 for presumption of capacity or a parent/guardian would need to sign.
  • Do you send information overseas or have cloud storage of data on servers located overseas? If so there are additional requirements to meet to ensure that personal information will be handled overseas in accordance with the APPs.
  • Practices, procedures and systems need to be considered to ensure personal information collected, used and disclosed is up to date, complete, and accurate and relevant for the purpose.
  • What steps or security measures are required to ensure that personal information collected is protected from misuse, interference, unauthorised accessing, loss, unauthorised disclosure, corruption. Information security is increasingly becoming a major issue.
  • Consideration must be given to implementing new practices and procedures for handling privacy inquiries, correction of personal information held and complaints handling.

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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Mark Fatharly
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