Thinking | 10 March 2017
Overview of Privacy Law in Australia
The handling of personal information in Australia is governed by legislation at both a federal and state/territory level.
At a federal level, the Privacy Act 1988 (Cth) (Privacy Act) governs the way in which business entities and federal government agencies must handle personal information, largely through the 13 Australian Privacy Principles (APPs) set out within the Privacy Act.
‘Personal information’ is defined by the Privacy Act as:
information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not.
State and territory government agencies must comply with the relevant state or territory based privacy legislation.
Entities handling personal information in Australia must also be aware of their obligations under:
- health records legislation (in Victoria, New South Wales and the Australian Capital Territory) (further explained in section 12 below)
- state and federal surveillance legislation (further explained in section 13 below), which governs the way in which individuals can and cannot be monitored through video surveillance, geographical tracking, data/computer surveillance and/or listening devices (including, in some jurisdictions, within the workplace) and
- federal legislation that governs email marketing and telemarketing, such as the Spam Act 2003 (Cth) and Do Not Call Register Act 2006 (Cth).
Who must comply with the Privacy Act?
The Privacy Act imposes obligations on ‘APP entities’.
An APP entity is, generally speaking:
- an agency (which largely refers to a federal government entity and/or office holder) or
- an organisation (which includes an individual, body corporate, partnership, unincorporated association, or trust).
An APP entity does not include:
- a ‘small business operator’ (subject to the exceptions below), which is an operator of a business with an annual turnover of less than $3 million
- a registered political party or
- a state or territory authority.
However, a small business operator will be deemed to be an APP entity, and therefore required to comply with the Privacy Act if they:
- operate another business with a turnover of $3 million or more
- provide a health service or otherwise hold health information (other than in an employee record)
- disclose, or collect, personal information about another individual for a benefit, service or advantage
- are a contracted service provider for a Commonwealth contract or
- are a credit reporting body.
Obligations under the Privacy Act
The key features of the Privacy Act include:
- the 13 APPs which are the principles that govern the way in which personal information is to be collected, used, disclosed and stored. We have included a summary of the APPs in section 4 below. The full text of the APPs can be viewed on the Australian Information Commisioner’s website.
- the credit reporting provisions of the Privacy Act (further explained in section 10 below), which govern the way in which credit-related personal information is to be collected, used, disclosed and stored. These provisions will be particularly relevant to entities that are credit providers (or agents of credit providers), credit reporting bodies, or that otherwise handle or deal in credit-related personal information and
- the obligation to comply with an ‘APP code’, which is a written code of practice usually specific to a particular entity or industry. In particular, there is a Credit Reporting Code (CR Code) which imposes on entities handing credit information additional obligations to those set out in the credit reporting provisions of the Privacy Act.
Accordingly, APP entities must be aware of the full scope of the obligations imposed upon them according to the nature of their business activities.
The Australian Privacy Principles
APP 1: Open and transparent management of personal information
APP 1 requires an APP entity to implement privacy practices, procedures and systems:
- to ensure compliance with the remaining APPs and
- that enable them to deal with inquiries and complaints.
It also requires them to develop and make readily available a policy about its management of personal information.
APP 2: Anonymity and pseudonymity
APP 2 entitles individuals to the option of anonymity or using a pseudonym, when dealing with an APP entity, except where impracticable or another prescribed exception applies.
APP 3: Collection of solicited personal information
APP 3, in summary:
- permits an APP entity to collect personal information only where reasonably necessary for one or more of its legitimate functions or activities
- requires personal information to be collected directly from the individual to whom it relates, unless impracticable or another prescribed exception applies and
- requires the consent from an individual in order to collect that individual’s sensitive information, or another prescribed exception applies.
APP 4: Dealing with unsolicited personal information
APP 4 requires an APP entity that receives unsolicited personal information to determine whether it would otherwise have had grounds on which to collect it (i.e. under APP 3) and:
- where it does have such grounds, to ensure compliance with the remaining APPs or
- where it does not have such grounds, to destroy or de-identify the personal information (provided it is lawful and reasonable to do so).
APP 5: Notification of the collection of personal information
APP 5 requires an APP entity to notify an individual (or ensure they are aware), at or before the time of collection, of prescribed matters. Such matters include but are not limited to whether the individual’s personal information is collected from any third parties, the purpose(s) of collection, to whom personal information is disclosed and the processes through which an individual can seek access and/or correction to their personal information, or otherwise complain about the way in which it is handled.
APP 6: Use or disclosure of personal information
APP 6 prohibits an APP entity from using or disclosing personal information for a purpose other than the purpose for which it was collected, unless the individual consents, the individual would reasonably expect their personal information to be used for the secondary purpose, or another prescribed exception applies.
Such prescribed exceptions generally arise where the disclosure is necessary to protect someone’s health or safety or is otherwise in the public interest.
APP 7: Direct marketing
APP 7 generally prohibits personal information to be used for direct marketing purposes unless the individual reasonably expects it, or consents to it, and prescribed ‘opt out’ processes are in place through which the individual can elect not to receive direct marketing communications (and the individual has not elected as such).
APP 8: Cross-border disclosure of personal information
If an APP entity is to disclose personal information to an overseas recipient, APP 8 requires it to take reasonable steps to ensure the recipient does not breach the APPs. This usually requires the APP entity to impose contractual obligations on the recipient.
Relevantly, if the overseas recipient does breach the APPs, the Privacy Act imposes liability on the APP entity that made the overseas disclosure.
There are exceptions to this obligation, including but not limited to where:
- the APP entity reasonably believes the overseas recipient is bound by a law or scheme that protects personal information in a substantially similar way to that of the APPs or
- the individual consents to the disclosure in the knowledge that such consent will negate the APP entity’s obligation to ensure the overseas recipient does not breach the APPs.
APP 9: Adoption, use or disclosure of government related identifiers
APP 9 prohibits an APP entity from adopting, using or disclosing a government-related identifier unless:
- required or authorised by law
- necessary to verify an individual’s identity and/or
- another prescribed exception applies.
Government-related identifiers are identifiers that have been assigned by a government agency including an individual’s licence number, Medicare number, passport number and tax file number.
APP 10: Quality of personal information
APP 10 requires an APP entity to take reasonable steps to ensure personal information it collects, uses, discloses and holds is accurate, up-to-date and complete. Additionally, personal information can only be used or disclosed to the extent to which it is relevant to the purpose of the use or disclosure.
APP 11: Security of personal information
APP 11 requires an APP entity to take reasonable steps to protect information from misuse, interference and loss and from unauthorised access, modification or disclosure.
An APP entity must also destroy or de-identify personal information it no longer requires (unless otherwise required to retain it by law).
APP 12: Access to personal information
APP 12 requires an APP entity to provide an individual, upon request, with access to their personal information unless a prescribed exception applies.
APP 13: Correction of personal information
APP 13 requires an APP entity to take reasonable steps to correct personal information it holds upon request from an individual for correction or where it is otherwise satisfied, having regard to the purpose for which it holds the personal information, that the personal information is inaccurate, out-of-date, incomplete, irrelevant or misleading.
If an APP entity refuses a request for correction, it needs to provide the individual with the reasons for the refusal and may be required to associate with the personal information a statement evidencing the individual’s view that the information is incorrect.
Where correction does occur, the APP entity may need to notify third parties to which the personal information, in its incorrect form, was disclosed.
The Privacy Act generally affords a higher level of protection to ‘sensitive information’ given the mishandling of it can generally have a more detrimental impact on the relevant individual.
‘Sensitive information’ is defined under the Privacy Act and includes information about an individual’s racial or ethnic origin, political opinions, professional or political or religious affiliations or memberships, sexual orientation or practices, criminal record, health, genetics and/or biometrics.
As an example, APP 3, which deals with the collection of solicited personal information, prohibits (with some exceptions) the collection of sensitive information unless the individual to whom it relates consents to the collection and the information is reasonably necessary for the collecting entity’s functions or activities.
The collection of non-sensitive information is otherwise generally permitted where it is reasonably necessary for the collecting entity’s legitimate functions or activities.
Extra-territorial application of the Privacy Act
An entity operating outside Australia will still have obligations under the Privacy Act if the entity has ‘an Australian link’. An entity will have an Australian link for the purposes of the Privacy Act if, generally speaking, the entity was formed in Australia, has its central management and control in Australia, or is otherwise carrying on a business and collects or holds personal information in Australia.
This expands the reach of the Privacy Act to overseas entities, or Australian subsidiaries of overseas entities, who are engaging in business-related acts within Australia, even if the business is otherwise predominantly conducted outside of Australia.
The Australian Information Commissioner has also pointed to specific indicators that an entity is carrying on a business within Australia, including where an entity has an agent or agents within Australia, websites offering goods or services to Australia, purchase orders being actioned within Australia, or personal information being collected from a person who is physically in Australia.
Penalties for breaching the Privacy Act
If an APP entity is found to have engaged in a serious, or repeated, interference with an individual’s privacy, the APP entity may face penalties of up to:
- $1.8 million for corporate bodies and/or
- $360,000 for non-corporate bodies (including government departments/agencies, sole-traders, partnerships, trusts, unincorporated associations).
An APP entity will interfere with an individual’s privacy if (among other things) it:
- breaches an APP
- breaches an APP code that is binding on the relevant entity (noting that the Australian Information Commission may impose an APP code on a particular organisation or industry)
- breaches the credit reporting provisions of the Privacy Act
- breaches the CR Code
- breaches a provision of a Commonwealth contract for which it is to provide services and/or
- handles a tax file number contrary to the Tax File Rule (which has been issued by the Australian Information Commissioner pursuant to the Privacy Act).
Implications for related bodies corporate
Generally, related bodies corporate can share personal information, provided they comply with the APPs and any applicable APP code. Where personal information is disclosed from one related body corporate to another, the Privacy Act requires the personal information to be handled (by the related body corporate to which it is disclosed) in accordance with the purpose for which it was initially collected (by the related body corporate from which it is disclosed).
Exempt acts: the employee records exemptions
Employee information is, generally speaking, excluded from the ambit of the Privacy Act.
Specifically, where an employer engages in an act or a practice that is directly related to:
- a current or former employment relationship between the employer and an individual and
- an ‘employee record’ held by the employer relating to the individual
- the act or practice will not be covered by, and therefore need not comply with, the Privacy Act.
An ‘employee record’ refers to a record of personal information relating to the employment of the employee. This includes, but is not limited to, health information about the employee and/or personal information about, discipline, resignation, termination, terms of employment, personal contact details, wages or salary, performance or conduct, periods of leave and/or memberships of professional bodies.
Accordingly, employers need not comply with the Privacy Act and the APPs to the extent they are dealing with an employee record in a manner that is directly related the employment relationship.
This does not mean, however, that employers can handle personal information about its employees with general disregard. Where the personal information does not fall within the employee records exemption (i.e. the personal information is not an employee record and the employer’s act or practice is unrelated to the employment relationship), compliance with the Privacy Act will be required.
Specifically, compliance with the Privacy Act is required with respect to:
- personal information about prospective employees (unless and until they are employed by the employer)
- personal information about contractors, company officers, volunteers and/or work experience students and/or
- personal information contained in, and obtained from, personal emails or other IT/phone use, which does not directly relate to the employee’s employment.
Additionally, employee information is likely to be subject to common law obligations of confidentiality and, in some states, health records legislation.
The employee records exemption has also been marked for possible repeal in the future, which would result in employers having to handle employee information in accordance with the Privacy Act.
Credit reporting provisions and the CR Code
The credit reporting provisions of the Privacy Act and the CR Code set out the ways in which entities are to handle credit-related personal information.
The credit reporting provisions of the Privacy Act are long and complex and impose obligations and prohibitions on credit reporting bodies and credit providers (and agents of credit providers).
An entity captured by the credit reporting provisions is required to take steps (often in addition to those set out in the APPs) to ensure compliance with the Privacy Act. Such obligations include, in some circumstances, acting with the express consent of the individual to whom the information relates. Additionally, specific obligations will depend on the type of information being handled. For example, a credit provider can only access and use information about an individual’s history of debt repayments if the credit provider is a ‘licensee’ under the National Consumer Credit Protection Act 2009 (Cth).
Mandatory breach notifications
On or before 22 February 2018, APP entities will also be required to notify the Australian Information Commissioner, and affected individuals, if the APP entity experiences a data breach that is likely to cause an individual serious harm. This obligation is designed to enable affected individuals to take steps to protect themselves.
Handling health information
The Privacy Act includes health information within its definition of ‘sensitive information’. Health information is therefore afforded a higher standard of protection.
Additionally, both private and public sector entities need to be aware of obligations that may arise under state-based legislation, including:
- Health Records and Information Privacy Act 2002 (NSW)
- Health Records Act 2001 (Vic) and
- Health Records (Privacy and Access) Act 1997 (ACT).
These laws also impose obligations on employers in Victoria and the ACT when handling health information about their employees. While health records law in NSW contains an employee records exemption for private sector employers, such employers may nevertheless be bound by the NSW legislation if the health information is unrelated to their employment.
Health and other sensitive information will also be subject to common law principles of confidentiality.
The use of surveillance and/or listening devices is governed by both state/territory and federal legislation. Obligations in relation to surveillance will depend on the type of device (e.g. computer and/or video surveillance, geographical tracking and/or the use of listening devices), the nature and purpose of the surveillance, the specific activity being observed/recorded including whether it is occurring in the workplace or not and, in some cases, whether it occurs in the private or public sector.
While each jurisdiction differs, generally speaking, the use of surveillance and/or listening often requires consent and/or notification. However, exceptions may apply, including where the use of such a device is necessary to protect a party’s lawful interests, for an enforcement-related purpose, and/or is in the public interest. Specific obligations may also be impacted by whether the person using the surveillance or listening device is a party to the activity/conversation and whether the activity/conversation is private or in a private space.
Hall & Wilcox is well placed to advise on privacy law compliance and any other issues arising from the handling of personal information.
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