2014 australian privacy laws update
DESCRIPTION
What does the Privacy Act cover? What are the new Australian Privacy Principles. A detailed overview of the 13 ne Australian Privacy Principles. What are the Privacy Commissioners new powers?TRANSCRIPT
2014 Privacy UpdateSteve Brown, Etienne Lawyers
www.etiennelaw.com
What does the Privacy Act Cover?
Privacy Act 1988 provides for the protections 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
www.etiennelaw.com
Privacy Law Reform - outlinePrivacy Amendment (Enhancing Privacy Protection)
Act 2012!
New Australian Privacy Principles (or APPs)!
Enhanced powers of the Commissioner!
How to prepare for the changes
www.etiennelaw.com
Australian Privacy Principles13 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
www.etiennelaw.com
APP 1 - Open and transparent management of personal information
Businesses must have a clearly expressed and up to
date privacy policy!
Businesses must take reasonable steps to implement
processes that will ensure that the business complies
with the APPs
www.etiennelaw.com
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 business to deal with an unidentified
individual
www.etiennelaw.com
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 a businesses functions or activities!
Higher standards for collection of sensitive information. Some
exceptions apply
www.etiennelaw.com
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
www.etiennelaw.com
APP 5 - Notification of collection
Outlines the matters a business must inform an individual about when the
business collects their personal information. These matters include:!
Information about a businesses APP policy!
Who the business is and how to contact it!
The purpose(s) of the collection!
Any collections from third parties
www.etiennelaw.com
APP 5 - Notification of collection (cont)
Consequences of non-collection!
Complaint handling process!
Potential overseas disclosure
www.etiennelaw.com
APP 6 - Use or disclosure
Deals with use and disclosure of personal information!
Different obligations apply to the use or disclosure of
sensitive information.
www.etiennelaw.com
APP 6 - Use or disclosure (cont)
New limited exceptions, to permit use or disclosure
for secondary purpose:!
Locate a missing person!
Establish, exercise or defend a legal equitable claim!
Confidential alternative dispute resolution
www.etiennelaw.com
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 us or disclose personal information for the purpose
of direct marketing if certain conditions are met
www.etiennelaw.com
APP 8 - Cross border disclosure
Introduces an accountability approach for cross-border
disclosure!
Businesses must take reasonable steps to ensure overseas
recipients do not breach APPs!
Businesses may be accountable for a breach of Apps by overseas
recipients!
Exceptions apply
www.etiennelaw.com
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!
A business may be required to comply with APP 9
under s7A
www.etiennelaw.com
APP 10 - QualityRequires agencies to take reasonable steps to ensure
personal information it collects, uses or discloses is:!
Accurate!
Up to date!
Complete
www.etiennelaw.com
APP 10 - Quality
Businesses should ensure that personal information
that it uses or discloses is also relevant for the
purpose of the use or disclosure
www.etiennelaw.com
APP 11 - SecurityInclusion of ‘interference’!
a business must take reasonable steps to protect
personal information it holds from misuse,
interference and loss, and from unauthorised
access, modification or disclosure
www.etiennelaw.com
APP 11 - Security (cont)New destruction requirements!
the business 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
www.etiennelaw.com
APP 12 - AccessBusinesses 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)
www.etiennelaw.com
APP 12 - Access (cont)
Individual not to be charged!
Written reasons for the refusal and complaint
mechanism
www.etiennelaw.com
APP 13 - CorrectionBusinesses required to take ‘reasonable steps’ to
correct personal information to ensure it is accurate,
up to date, complete, relevant and not misleading, if:!
business satisfied it needs to be corrected, or!
individual requests correction
www.etiennelaw.com
APP 13 - Correction (cont)Business to respond to request within 30 days!
Individual not to be charged!
Statement required if business refuses to correct and
individual request statement!
Written reasons for refusal and complaint mechanism
www.etiennelaw.com
Commissioner’s new powersPerfomance assessments!
Code making powers!
Ability to make a determination to resolve OMIs!
Enforceable penalty orders!
Ability to direct Privacy Impact Assessment to be
conducted
Steve [email protected]
To avoid thousands of dollars in legal fees and the possibility of a gaol sentence call 1300 882 032
etienneLAWYERS
in association with Davis King & Co