Australia: Quarterly statistics report: health information involved in 24 per cent of data breaches: Australian legal update

Legal Insights
Last Updated: 24 April 2018
Article by Natalie Mason

According to the most recent Quarterly Report by the Office of the Information Commissioner, data breaches have affected 63 Australian organisations since 22 February, 24 per cent of those were in healthcare. In this briefing we consider the current data protection regime in Australia, and offer useful compliance information for all Health Service Providers.

The new regime

The Notifiable Data Breaches scheme ('the Scheme'), which came into effect on 22 February 2018, established requirements for entities in responding to data breaches. Essentially, the Scheme, requires Australian Government agencies and various organisations with obligations to secure personal information under Privacy Act 1988 (Cth) (the Privacy Act), to notify individuals who have been subjected to data breaches that are likely to result in serious harm.

The Scheme also requires mandatory notification of certain data breaches to the Australian Information Commissioner ('the Commissioner'); even if a data breach is merely suspected, entities must conduct an assessment to determine whether the breach should be notified or reported.

What is a data breach?

There is no requirement of a cyber attack for a breach to arise. An eligible data breach arises when the following three criteria are satisfied:

  1. there is unauthorised access to or unauthorised disclosure of personal information, or a loss of personal information, that an entity holds;
  2. this is likely to result in serious harm to one or more individuals; and
  3. the entity has not been able to prevent the likely risk of serious harm with remedial action.

Data breaches occur more simply than organisations might expect. They can arise out of malicious acts, information and security system failures, loss or theft of devices or paper records, unauthorised access by employees, disclosure of personal information due to inadequate identity verification procedures, and by pure human error. Human error can arise by simply sending a document or email, containing personal information to the incorrect recipient.

In its most recent quarterly report , the Office of the Australian Information Commissioner (OAIC), reported that:

  • 51% of eligible data breach notifications were caused by human error;
  • 44% were due to malicious or criminal attacks; and
  • 3% were the result of system faults.

Where information is held jointly and a data breach occurs, an entity will be deemed responsible if it is holding the affected information. For example, if a health service provider stores health records with a cloud service provider, or offsite, the health service provider has an obligation to retain control of the records, whilst the cloud service company, or off site storage provider holds the personal information. Each entity has obligations under the Scheme, however only one is required to comply with the assessment and notification requirements on behalf of both entities. Both entities may be found to have breached the Scheme where neither entity conducts an assessment or notifies of a data breach.

What is serious harm?

Whether a data breach is likely to result in serious harm requires an objective assessment, determined from the viewpoint of a reasonable person in the entity's position.

Is serious harm likely?

The phrase 'likely to occur' means the risk of serious harm to an individual is more probable than not (rather than possible).
'Serious harm' is not defined by the Privacy Act. In the context of a data breach, serious harm to an individual may include serious physical, psychological, emotional, financial, or reputational harm.
Entities should assess the risk of serious harm holistically, having regard to the likelihood of the harm eventuating for individuals whose personal information was part of the data breach and the consequences of the harm.

What type of personal information is involved in reported breaches?

An eligible data breach may involve one or more kinds of personal information. The majority of data breaches reported to the OAIC involved 'contact information', such as an individual's name, email address, home address or phone number. This is distinct from 'identity information', which is information that is used to confirm an individual's identity, such as driver licence numbers and passport numbers.

What is the cost of non-compliance?

A failure to comply with the notification requirements of the Scheme may result in penalties of up to $1.8 million for organisations and $360,000 for individuals for serious or repeated breaches.
A failure to comply can also result in affected individuals filing a complaint with the Commissioner or the Commissioner may investigate even without a complaint being made. Following an investigation the Commissioner may issue a determination requiring the organisation to:

  • Perform any reasonable act or course of conduct to redress any loss or damage suffered by affected individuals;
  • Take specified steps to ensure that an organisation's conduct is not repeated or continued; and/or
  • Pay compensation for any loss or damage to affected individuals.

In addition to statutory monetary penalties, and any compensatory damages awarded by the Commissioner, a data breach is likely to have a negative impact on your commercial reputation which could ultimately result in further economic loss.

Does the Scheme apply to my provider or business?

The Scheme applies to all Australian government agencies; businesses and not-for-profits with an annual revenue of $3 million or more per annum; all health service providers; credit providers, credit reporting bodies, entities that trade in personal information, and tax file number recipients.

Does my organisation provide a Health Service?

If you provide a health service and hold health information you are covered by the Privacy Act even if that is not your primary activity.
Under the Privacy Act, 'health service' includes any activity that involves:

  • assessing, maintaining or improving a person's physical or psychological health;
  • diagnosing or treating a person's illness, disability or injury;
  • recording a person's physical or psychological health for the purposes of assessing, maintaining, improving or managing the person's health;
  • dispensing a prescription drug or medicinal preparation by a pharmacist; and
  • where a person's health cannot be maintained or improved – managing the person's physical or psychological health.

This includes activities that take place in the course of providing aged care, palliative care or care for a person with a disability.

Organisations providing a health service include:

  • traditional health service providers, such as private hospitals, day surgeries, medical practitioners, pharmacists and allied health professionals;
  • complementary therapists, such as naturopaths and chiropractors;
  • gyms and weight loss clinics; and
  • child care centres and private schools.

My Health Records Act – an exemption to the Scheme

If a data breach is required to be notified under s 75 of the My Health Records Act, the Scheme does not apply. This exception is intended to avoid duplication of notices under the Scheme and the data breach notification requirements in the My Health Record system.

Getting your data protection right

As technology becomes more flexible, data becomes more valuable. However, the legal framework and the risks around use, management and security have never been more complex.

We can provide a range of services to suit your organisation's needs. We recognise that budgets are not limitless, so we can help you to identify the most important areas that you should address

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.

Natalie Mason
Similar Articles
Relevancy Powered by MondaqAI
Thynne & Macartney
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
Thynne & Macartney
Related Articles
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
Registration (you must 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