Australia: Five practical things you need to know about Mandatory Data Breach Reporting

Last Updated: 1 March 2018
Article by Peter Karcher

After 10 years and numerous Federal Governments Australia has finally caught up with the rest of the world in terms of mandatory data breach notification (the US first introduced mandatory data breach reporting over 15 years ago). To mark the commencement of the laws which kicked off on 23 February 2018, we take a look at five things you need to know about the regime (one for every two years since the Australian Law Reform Commission first recommended the idea back in 2008!)


    The mandatory data breach laws come within the framework of Australia's Federal Privacy Act, which regulates the collection, handling and disclosure of personal information such as names, addresses, phone numbers and personal financial details including bank account and credit card details. The rules do not apply to unauthorised access to or disclosure of sensitive business information including financial data, unless it also includes personal information relating to identifiable individuals. So while a hack which targets confidential business information may be an event of serious consequences for a commercial organisation, it may have nothing to do with the notifiable data breach laws. Keep in mind that employee records kept by a private sector employer are also not regulated by the Privacy Act, therefore a breach involving personal information of an organisation's employees may not trigger the notification laws either.


    The Privacy Act does not apply to all businesses. There is a small business exemption whereby if you are a private sector business or a not-for-profit organisation and your annual turnover is $3 million or less, you are not an "APP Entity" and therefore the Privacy Act, including the mandatory notification requirements, does not apply to you. There are exceptions to this exemption for certain types of businesses if you operate in the Health Care, Child Care, Education or Credit Reporting industries, or if your business involves buying or selling personal information (e.g. if you commercialise a customer data base). Interestingly State and Territory Government bodies (as opposed to Federal Government bodies) are also not subject to the new laws, given that privacy laws are separately regulated in the public sector at the State level. So the laws may not apply to you because you are too small. Of course there is the law, and then there is best practice. Reporting of data breaches may well be a best practice course of action to mitigate reputational damage and loss of customer goodwill. Whether small businesses with limited resources available for compliance are in a position to address this will depend on the nature of the business itself.


    The term "data breach" brings to mind first and foremost a cyber attack by nameless ghosts out there in the Internet, an extraordinary circumstance affecting high profile businesses or big corporates. However the definition of a data breach is where there is "unauthorised access to, or unauthorised disclosure of, personal information..., or where such information is lost in circumstances that are likely to give rise to unauthorised access or unauthorised disclosure". A far more common data breach, for example, is the employee who mistakenly discloses customer information to the wrong person at another organisation, when the employee was not actually authorised to disclose it. Or a disgruntled employee who leaves and takes customer personal information with him or her in circumstances where it may be disclosed to damage the organisation. Or simply leaving a portable device on the bus! Businesses will need to be alive to the fact that such events could trigger their investigation and breach reporting obligations.


    The new laws require a data breach to be notified only where there is a "likely risk of serious harm" to any of the individuals whose information is affected. The law doesn't set out all the circumstances in which "serious harm" may occur or what type of data may trigger this threshold. So while the disclosure of customers' credit card details, for example, has the clear potential for serious harm, will the disclosure of a database of names, email addresses, phone numbers etc. be a notifiable breach? In this regard context is everything. Think of the infamous Ashley Madison data breach. While the disclosure of names or addresses could be mundane in many contexts, Ashley Madison was a scenario in which the disclosure of such simple personal information could very well lead to the conclusion of "serious harm" occurring to the individuals concerned.


    All is not lost if you discover that a data breach has occurred. In fact, some of the more mundane data breaches such as losing information can be remedied, even if the event would otherwise have been a reportable breach. If you are able to take steps such that "serious harm" is ultimately not likely to occur, you have a get-out. So for example if you are able to recover lost data before it is likely to have been used or copied, if you can reign in that recalcitrant employee before he or she goes to Wikileaks, or if you are savvy enough to have put in place the tech to remotely wipe the data from a lost device, you may still be in the clear!

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.

Peter Karcher
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”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
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