Protecting information rights – advancing information policy

Privacy law reform for APP entities (agencies)

Privacy Awareness Weekwww.oaic.gov.au

Asia Pacific Privacy Authorities

What does the Privacy Act cover?Privacy Act 1988 provides for the protection of an individual’s personal information

Privacy Act contains provisions that deal with:– ‘personal information’– ‘sensitive information’ (such as health information)– tax file numbers– credit information

• Privacy Amendment (Enhancing Privacy Protection) Act 2012

• New Australian Privacy Principles (or APPs)

• Enhanced powers of the Commissioner

• How to prepare for the changes

Privacy law reform — outline

Australian Privacy Principles

• 13 new APPs to replace IPPs and NPPs– Single set of principles which apply to both

public and private sectors– Government agencies and private sector

organisations are referred to as ‘APP entities’– Structured to reflect the information life

cycle — collection, use and disclosure, quality and security, access and correction

– Permitted general situation

APP 1 — Open and transparent management of personal information• Agencies must have a clearly expressed

and up to date privacy policy

• Agencies must take reasonable steps to implement processes that will ensure that the agency complies with the APPs

APP 2 — Anonymity and pseudonymity

• Allows individuals to interact with agencies by not identifying themselves

• Permits the individual to use a pseudonym

• Exceptions apply, such as where it is impracticable for the agency to deal with an unidentified individual

APP 3 – Collection of personal and sensitive information

• Outlines obligations relating to the collection of personal and sensitive information

• Collection must be ‘reasonably necessary’ for, or ‘directly related’ to, one or more of an agency’s functions or activities

• Higher standards for collection of sensitive information. Some exceptions apply

APP 4 — Dealing with unsolicited personal information

• New principle for handling unsolicited personal information

• Establish if the information could have been collected under APP 3

• Destroy or de-identify the information if it could not have been collected under APP 3

APP 5 — Notification of collection • Outlines the matters an agency must inform an

individual about when the agency collects their personal information. These matters include:– Information about an agency’s APP policy– Who the agency is and how to contact it– The purpose(s) of the collection– Any collections from third parties– Consequences of non-collection– Complaint handling process– Potential overseas disclosure

APP 6 — Use or disclosure • Deals with use and disclosure of personal

information

• Different obligations apply to the use or disclosure of sensitive information. This is new for agencies

• New limited exceptions, to permit use or disclosure for secondary purpose:– Locate missing person– Establish, exercise or defend a legal equitable claim– Confidential alternative dispute resolution

APP 7 – Direct marketing• Prohibits organisations from using or disclosing

personal information for direct marketing purposes, except in specified circumstances

• Contracted service providers for Commonwealth contracts are permitted to use or disclose personal information for the purpose of direct marketing if certain conditions are met

APP 8 – Cross border disclosure• Introduces an accountability approach for cross-

border disclosure

• Agencies must take reasonable steps to ensure overseas recipients do not breach APPs

• Agencies may be accountable for a breach of APPs by overseas recipients

• Exceptions apply

APP 9 — Adoption, use or disclosure of government related identifiers

• Prohibits an organisation from adopting, or using a government related identifier

• Generally replicates the exceptions under National Privacy Principle 7, with some additions

• An agency may be required to comply with APP 9 under s7A

APP 10 — Quality • Requires agencies to take reasonable steps to ensure

personal information it collects, uses or discloses is: – Accurate– Up-to-date– Complete

• Agencies should ensure that personal information that it uses or discloses is also relevant for the purpose of the use or disclosure

APP 11 — Security • Inclusion of ‘interference’

– an agency must take reasonable steps to protect personal information it holds from misuse, interference and loss, and from unauthorised access, modification or disclosure

• New destruction requirements– the agency must take such steps as are reasonable in the

circumstances to destroy the information or to ensure the information is de-identified

– Some exceptions eg information contained in a Commonwealth record

APP 12 — Access • Agencies required to respond to requests for access

of personal information within 30 days

• Exceptions apply – Freedom of Information Act 1982 or other legislation

• Access should be provided in the requested manner (where reasonable and practicable)

• Individual not to be charged

• Written reasons for the refusal and complaint mechanism

APP 13 — Correction• Agencies required to take ‘reasonable steps’ to

correct personal information to ensure it is accurate, up-to-date, complete, relevant and not misleading, if:– agency satisfied it needs to be corrected, or– individual requests correction

• Agency to respond to request within 30 days• Individual not to be charged• Statement required if agency refuses to correct and

individual requests statement• Written reasons for refusal and complaint mechanism

Commissioner’s new powers

• Performance assessments

• Code making powers

• Ability to make a determination to resolve OMIs

• Enforceable undertakings

• Civil penalty orders

• Ability to direct Privacy Impact Assessment to be conducted

OAIC guidance and resources

Stay in touch• Information Contact Officer Network

– Join ICON: icon@oaic.gov.au

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