Australia: Transport operators: 10 things you should know about privacy law

Transport operators often ask us about privacy issues. This is usually because they handle sensitive information (such as criminal records and drug and alcohol test results) or because they receive requests from their customers for various personal records for compliance and safety purposes. In this article, we set out ten of the most commonly asked questions with brief answers.

Of course, these answers are intended as general guidance only and you should seek specific legal advice in relation to your own circumstances.

  1. When does a business need to comply with the Privacy Act?

Businesses that need to comply with the Privacy Act (the Act) include all private sector and not-for-profit organisations that have an annual turnover of more than $3 million. While most small businesses with an annual turnover under $3 million do not need to comply with the Act, there are certain circumstances where a small business does need to comply. This checklist on the Office of the Australian Information Commissioner website provides a useful summary.

  1. What is 'personal information'?

The Act defines 'personal information' as information or an opinion about an identified individual, or an individual who is reasonably identifiable:

  1. whether the information or opinion is true or not; and
  2. whether the information or opinion is recorded in a material form or not.

Personal information can include an individual's name, signature, address, telephone number, date of birth, medical records, bank account details, employment details and commentary or opinion about a person. It can also include a vocation reference or assessment or commentary on performance, attitude or aptitude.

Whether an individual can be identified or is reasonably identifiable depends on context and circumstances. For example, providing drivers' licence copies with names and addresses obscured but with photographs included may be 'personal information' if the recipient could recognise the driver from the photograph.

  1. What is sensitive information?

Sensitive information is a form of personal information that is given a higher level of privacy protection under the Act. The Act defines 'sensitive information' as:

  1. information or an opinion about an individual's:
    1. racial or ethnic origin;
    2. political opinions;
    3. membership of a political association;
    4. religious beliefs or affiliations;
    5. philosophical beliefs;
    6. membership of a professional or trade association;
    7. membership of a trade union;
    8. sexual orientation or practices;
    9. criminal record;

    that is also personal information;

  1. health information about an individual;
  2. genetic information about an individual that is not otherwise health information;
  3. biometric information that is to be used for the purpose of automated biometric verification or biometric identification; or
  4. biometric templates.

For transport operators, drug and alcohol test results, medical screening tests and criminal record checks would all be classified as 'sensitive information'.

  1. When must a business have a privacy policy?

If a business must comply with the Privacy Act (see question 1), it must have a written privacy policy about the management of personal information by the entity.

  1. What needs to be in a privacy policy?

The Australian Privacy Principles (APPs) (contained in schedule 1 of the Act) set out rules which regulate the collection, handling and disclosure of personal information. The APPs provide that a privacy policy must contain the following information:

  1. the kinds of personal information that the entity collects and holds;
  2. how the entity collects and holds personal information;
  3. the purposes for which the entity collects, holds, uses and discloses personal information;
  4. how an individual may access personal information about the individual that is held by the entity and seek the correction of such information;
  5. how an individual may complain about a breach of the APPs, or a registered APP code (if any) that binds the entity, and how the entity will deal with such a complaint;
  6. whether the entity is likely to disclose personal information to overseas recipients; and
  7. if the entity is likely to disclose personal information to overseas recipients – the countries in which such recipients are likely to be located if it is practicable to specify those countries in the policy.
  1. Are employment records covered by the Privacy Act?

Certain private sector employee records are exempt from the operation of the Act. Section 7B(3) of the Act provides:

An act done, or practice engaged in, by an organisation that is or was an employer of an individual, is exempt ... if the act or practice is directly related to:
  1. a current or former employment relationship between the employer and the individual; and
  2. an employee record held by the organisation and relating to the individual.

This means that a private sector employer does not need to comply with the APPs when it handles current and past employee records for something that is directly related to the employment relationship. However, records relating to prospective employees, and subcontractors and employees of subcontractors are not covered by this exemption.

  1. Is de-identified personal information covered by the Privacy Act?

De-identified personal information is not covered. This is because, consistently with the definition of 'personal information' discussed above, the relevant individual would not be 'reasonably identifiable'. Personal information is de-identified if the information is no longer about an identifiable individual or an individual who is reasonably identifiable.

  1. What should I do if I receive a request from one of my customers to provide personal information in relation to my drivers or my subcontractors' drivers?

The answer differs depending on whether the driver is a subcontractor or a current or former employee.

Subcontractors: The APPs provide that individuals' personal information may only be used or disclosed for the purpose for which it was collected (the primary purpose), unless one of the exceptions to the rule apply. Usually, the records of a subcontractor will not have been collected for the purpose of provision to a customer or third party. However, there are a number of exceptions to this general rule. The most relevant exception from a transport operator's perspective is where the individual has consented to the use or disclosure of their personal information for another purpose. Transport operators should therefore seek consent (preferably in writing) from a subcontractor before releasing their personal information. This issue can also be dealt with by using a collection statement that explains the purpose of collecting the information at the time the records are obtained.

Current and former employees: As discussed above, employee records are excluded from the operation of the Act if the records are directly related to a current or former relationship between the employer and the individual. This means that transport operators are usually able to provide information to other companies about a person who works for or used to work for the business. However, best practice would be to seek consent from an employee before releasing their personal information, particularly in the case of sensitive information (see question 9 below).

  1. Is providing copies of criminal record checks of employees covered by the Privacy Act?

It is clear that criminal record checks are sensitive information. However, it is unclear whether information about an employee's criminal record is an 'employment record' and therefore covered by the exception for employee records. The Australian Human Rights Commission recommends that:

It is best practice for employers to follow privacy principles as closely as possible when dealing with information relating to a person's criminal record. Breaches of privacy in relation to criminal record can complicate relations between an employee and employer, and may lead to claims of discrimination and breaches of the Privacy Act 1988 (Cth). Employers may also face a potential claim under common law for breaches of privacy and wrongful disclosure of confidential information.

(see ' On the Record – Guidelines for the Prevention of Discrimination in Employment on the Basis of Criminal Record')

We therefore recommend that transport operators seek their employee's consent before disclosing their criminal record.

  1. What are the consequences of breaching the Privacy Act?

Individuals or corporations that seriously or repeatedly interfere with the privacy of an individual are liable for fines of up to $360,000 (for individuals) or $1.8 million (for corporations).

© Cooper Grace Ward Lawyers

Cooper Grace Ward is a leading Australian law firm based in Brisbane.

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.

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

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

Authors
 
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”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
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 you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (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 www.mondaq.com

    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 Mondaq.com’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.

    Disclaimer

    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.

    Registration

    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.

    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 unsubscribe@mondaq.com 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.

    Cookies

    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.

    Links

    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.

    Mail-A-Friend

    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.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    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 webmaster@mondaq.com.

    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 EditorialAdvisor@mondaq.com.

    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 enquiries@mondaq.com.

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

    By clicking Register you state you have read and agree to our Terms and Conditions