An Act to make provision to protect the privacy of individuals,
and for related purposes
WHEREAS Australia
is a party to the International Covenant on Civil and Political Rights, the
English text of which is set out in Schedule 2 to the Australian Human
Rights Commission Act 1986:
AND WHEREAS, by
that Covenant, Australia has undertaken to adopt such legislative measures as
may be necessary to give effect to the right of persons not to be subjected to
arbitrary or unlawful interference with their privacy, family, home or
correspondence:
AND WHEREAS Australia is a member of the Organisation for Economic Co‑operation and Development:
AND WHEREAS the
Council of that Organisation has recommended that member countries take into
account in their domestic legislation the principles concerning the protection
of privacy and individual liberties set forth in Guidelines annexed to the
recommendation:
AND WHEREAS Australia has informed that Organisation that it will participate in the recommendation
concerning those Guidelines:
BE IT THEREFORE
ENACTED by the Queen, and the Senate and the House of Representatives of the
Commonwealth of Australia, as follows:
Part I—Preliminary
1
Short title
This Act may be cited as the Privacy
Act 1988.
2
Commencement
This Act commences on a day to be fixed
by Proclamation.
2A
Objects of this Act
The objects of this Act are:
(a) to promote the protection of the
privacy of individuals; and
(b) to recognise that the protection
of the privacy of individuals is balanced with the interests of entities in
carrying out their functions or activities; and
(c) to provide the basis for
nationally consistent regulation of privacy and the handling of personal
information; and
(d) to promote responsible and
transparent handling of personal information by entities; and
(e) to facilitate an efficient credit
reporting system while ensuring that the privacy of individuals is respected;
and
(f) to facilitate the free flow of
information across national borders while ensuring that the privacy of
individuals is respected; and
(g) to provide a means for individuals
to complain about an alleged interference with their privacy; and
(h) to implement Australia’s
international obligation in relation to privacy.
3
Saving of certain State and Territory laws
It is the intention of the Parliament
that this Act is not to affect the operation of a law of a State or of a
Territory that makes provision with respect to the collection, holding, use,
correction or disclosure of personal information (including such a law relating
to credit reporting or the use of information held in connection with credit
reporting) and is capable of operating concurrently with this Act.
Note: Such a law can have effect for the purposes of
the provisions of the Australian Privacy Principles that regulate the handling
of personal information by organisations by reference to the effect of other
laws.
3A
Application of the Criminal Code
Chapter 2 of the Criminal Code
(except Part 2.5) applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
4 Act
to bind the Crown
(1) This Act binds the Crown in right of the
Commonwealth, of each of the States, of the Australian Capital Territory, of
the Northern Territory and of Norfolk Island.
(2) Nothing in this Act renders the Crown in
right of the Commonwealth, of a State, of the Australian Capital Territory, of
the Northern Territory or of Norfolk Island liable to be prosecuted for an
offence.
(3) Nothing in this Act shall be taken to
have the effect of making the Crown in right of a State, of the Australian Capital Territory, of the Northern Territory or of Norfolk Island an agency for
the purposes of this Act.
5A
Extension to external Territories
This Act extends to all external
Territories.
5B
Extra‑territorial operation of Act
Agencies
(1) This Act, a registered APP code and the
registered CR code extend to an act done, or practice engaged in, outside
Australia and the external Territories by an agency.
Note: The act or practice overseas will not breach
an Australian Privacy Principle or a registered APP code if the act or practice
is required by an applicable foreign law (see sections 6A and 6B).
Organisations and small business operators
(1A) This Act, a registered APP code and the
registered CR code extend to an act done, or practice engaged in, outside
Australia and the external Territories by an organisation, or small business
operator, that has an Australian link.
Note: The act or practice overseas will not breach
an Australian Privacy Principle or a registered APP code if the act or practice
is required by an applicable foreign law (see sections 6A and 6B).
Australian link
(2) An organisation or small business
operator has an Australian link if the organisation or operator
is:
(a) an Australian citizen; or
(b) a person whose continued presence
in Australia is not subject to a limitation as to time imposed by law; or
(c) a partnership formed in Australia or an external Territory; or
(d) a trust created in Australia or an external Territory; or
(e) a body corporate incorporated in Australia or an external Territory; or
(f) an unincorporated association
that has its central management and control in Australia or an external
Territory.
(3) An organisation or small business
operator also has an Australian link if all of the following
apply:
(a) the organisation or operator is
not described in subsection (2);
(b) the organisation or operator
carries on business in Australia or an external Territory;
(c) the personal information was
collected or held by the organisation or operator in Australia or an external
Territory, either before or at the time of the act or practice.
Power to deal with complaints about overseas acts and
practices
(4) Part V of this Act has extra‑territorial
operation so far as that Part relates to complaints and investigation
concerning acts and practices to which this Act extends because of subsection (1)
or (1A).
Note: This lets the Commissioner take action overseas
to investigate complaints and lets the ancillary provisions of Part V
operate in that context.
Part II—Interpretation
Division 1—General definitions
6
Interpretation
(1) In this Act, unless the contrary
intention appears:
ACC means the Australian Crime Commission.
access seeker has the meaning given by
subsection 6L(1).
ACT enactment has the same meaning as enactment
has in the Australian Capital Territory (Self‑Government) Act 1988.
advice related functions has the meaning
given by subsection 28B(1).
affected information recipient means:
(a) a mortgage insurer; or
(b) a trade insurer; or
(c) a body corporate referred to in
paragraph 21G(3)(b); or
(d) a person referred to in paragraph 21G(3)(c);
or
(e) an entity or adviser referred to
in paragraph 21N(2)(a).
agency means:
(a) a Minister; or
(b) a Department; or
(c) a body (whether incorporated or
not), or a tribunal, established or appointed for a public purpose by or under
a Commonwealth enactment, not being:
(i) an incorporated
company, society or association; or
(ii) an organisation that
is registered under the Fair Work (Registered Organisations) Act 2009 or
a branch of such an organisation; or
(d) a body established or appointed by
the Governor‑General, or by a Minister, otherwise than by or under a
Commonwealth enactment; or
(e) a person holding or performing the
duties of an office established by or under, or an appointment made under, a
Commonwealth enactment, other than a person who, by virtue of holding that
office, is the Secretary of a Department; or
(f) a person holding or performing
the duties of an appointment, being an appointment made by the Governor‑General,
or by a Minister, otherwise than under a Commonwealth enactment; or
(g) a federal court; or
(h) the Australian Federal Police; or
(ha) a Norfolk Island agency; or
(j) the nominated AGHS company; or
(k) an eligible hearing service
provider; or
(l) the service operator under the Healthcare
Identifiers Act 2010.
amount of credit has the meaning given by
subsection 6M(2).
annual turnover of a business has the meaning
given by section 6DA.
APP code has the meaning given by section 26C.
APP code developer means:
(a) an APP entity; or
(b) a group of APP entities; or
(c) a body or association representing
one or more APP entities.
APP complaint means a complaint about an act
or practice that, if established, would be an interference with the privacy of
an individual because it breached an Australian Privacy Principle.
APP entity means an agency or organisation.
APP privacy policy has the meaning given by
Australian Privacy Principle 1.3.
Australian law means:
(a) an Act of the Commonwealth or of a
State or Territory; or
(b) regulations, or any other
instrument, made under such an Act; or
(c) a Norfolk Island enactment; or
(d) a rule of common law or equity.
Australian link has the meaning given by
subsections 5B(2) and (3).
Australian Privacy Principle has the meaning
given by section 14.
authorised agent of a reporting entity means
a person authorised to act on behalf of the reporting entity as mentioned in
section 37 of the Anti‑Money Laundering and Counter‑Terrorism Financing
Act 2006.
bank means:
(a) the Reserve Bank of Australia; or
(b) a body corporate that is an ADI
(authorised deposit‑taking institution) for the purposes of the Banking Act
1959; or
(c) a person who carries on State
banking within the meaning of paragraph 51(xiii) of the Constitution.
Bankruptcy Act means the Bankruptcy Act
1966.
ban period has the meaning given by
subsection 20K(3).
Board of the ACC means the Board of the
Australian Crime Commission established under section 7B of the Australian
Crime Commission Act 2002.
breach:
(a) in relation to an Australian
Privacy Principle, has the meaning given by section 6A; and
(b) in relation to a registered APP
code, has the meaning given by section 6B; and
(c) in relation to the registered CR
code, has the meaning given by section 6BA.
Cabinet, in relation to Norfolk Island, means
a body that:
(a) consists of Norfolk Island
Ministers; and
(b) corresponds to the Cabinet.
civil penalty order has the meaning given by
subsection 80W(4).
civil penalty provision has the meaning given
by section 80U.
class member, in relation to a representative
complaint, means any of the persons on whose behalf the complaint was lodged,
but does not include a person who has withdrawn under section 38B.
code complaint means a complaint about an act
or practice that, if established, would be an interference with the privacy of an
individual because it breached a registered APP code.
Codes Register has the meaning given by
subsection 26U(1).
collects: an entity collects
personal information only if the entity collects the personal information for
inclusion in a record or generally available publication.
commercial credit means credit (other than
consumer credit) that is applied for by, or provided to, a person.
commercial credit related purpose of a credit
provider in relation to a person means the purpose of:
(a) assessing an application for
commercial credit made by the person to the provider; or
(b) collecting payments that are
overdue in relation to commercial credit provided by the provider to the
person.
Commissioner means the Information
Commissioner within the meaning of the Australian Information Commissioner
Act 2010.
Commissioner of Police means the Commissioner
of Police appointed under the Australian Federal Police Act 1979.
Commission of inquiry means:
(a) the Commission of inquiry within
the meaning of the Quarantine Act 1908; or
(b) a Commission of inquiry within the
meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
committee of management of an unincorporated
association means a body (however described) that governs, manages or conducts
the affairs of the association.
Commonwealth contract means a contract, to
which the Commonwealth, Norfolk Island or an agency is or was a party, under
which services are to be, or were to be, provided to an agency.
Note: See also subsection (9) about provision
of services to an agency.
Commonwealth enactment means:
(a) an Act other than:
(i) the Northern
Territory (Self‑Government) Act 1978; or
(ii) an Act providing for
the administration or government of an external Territory; or
(iii) the Australian
Capital Territory (Self‑Government) Act 1988;
(b) an Ordinance of the Australian Capital Territory;
(c) an instrument (including rules,
regulations or by‑laws) made under an Act to which paragraph (a) applies
or under an Ordinance to which paragraph (b) applies; or
(d) any other legislation that applies
as a law of the Commonwealth (other than legislation in so far as it is applied
by an Act referred to in subparagraph (a)(i) or (ii)) or as a law of the
Australian Capital Territory, to the extent that it operates as such a law.
Commonwealth officer means a person who holds
office under, or is employed by, the Commonwealth, and includes:
(a) a person appointed or engaged
under the Public Service Act 1999;
(b) a person (other than a person
referred to in paragraph (a)) permanently or temporarily employed by, or
in the service of, an agency;
(c) a member of the Defence Force; and
(d) a member, staff member or special
member of the Australian Federal Police;
but does not include a person permanently or temporarily
employed in the Australian Capital Territory Government Service or in the
Public Service of the Northern Territory or of Norfolk Island.
Commonwealth record has the same meaning as
in the Archives Act 1983.
consent means express consent or implied
consent.
consumer credit means credit:
(a) for which an application has been
made by an individual to a credit provider, or that has been provided to an
individual by a credit provider, in the course of the provider carrying on a
business or undertaking as a credit provider; and
(b) that is intended to be used wholly
or primarily:
(i) for personal, family
or household purposes; or
(ii) to acquire, maintain,
renovate or improve residential property for investment purposes; or
(iii) to refinance consumer
credit that has been provided wholly or primarily to acquire, maintain,
renovate or improve residential property for investment purposes.
consumer credit liability information: if a
credit provider provides consumer credit to an individual, the following
information about the consumer credit is consumer credit liability
information about the individual:
(a) the name of the provider;
(b) whether the provider is a
licensee;
(c) the type of consumer credit;
(d) the day on which the consumer
credit is entered into;
(e) the terms or conditions of the
consumer credit:
(i) that relate to the
repayment of the amount of credit; and
(ii) that are prescribed by
the regulations;
(f) the maximum amount of credit available
under the consumer credit;
(g) the day on which the consumer
credit is terminated or otherwise ceases to be in force.
consumer credit related purpose of a credit
provider in relation to an individual means the purpose of:
(a) assessing an application for
consumer credit made by the individual to the provider; or
(b) collecting payments that are
overdue in relation to consumer credit provided by the provider to the
individual.
contracted service provider, for a government
contract, means:
(a) an organisation that is or was a
party to the government contract and that is or was responsible for the
provision of services to an agency or a State or Territory authority under the
government contract; or
(b) a subcontractor for the government
contract.
corporation means a body corporate that:
(a) is a foreign corporation;
(b) is a trading corporation formed
within the limits of Australia or is a financial corporation so formed; or
(c) is incorporated in a Territory,
other than the Northern Territory.
court proceedings information about an
individual means information about a judgement of an Australian court:
(a) that is made, or given, against
the individual in proceedings (other than criminal proceedings); and
(b) that relates to any credit that
has been provided to, or applied for by, the individual.
court/tribunal order means an order,
direction or other instrument made by:
(a) a court; or
(b) a tribunal; or
(c) a judge (including a judge acting
in a personal capacity) or a person acting as a judge; or
(d) a magistrate (including a
magistrate acting in a personal capacity) or a person acting as a magistrate;
or
(e) a member or an officer of a
tribunal;
and includes an order, direction or other instrument that
is of an interim or interlocutory nature.
CP derived information about an individual
means any personal information (other than sensitive information) about the
individual:
(a) that is derived from credit
reporting information about the individual that was disclosed to a credit
provider by a credit reporting body under Division 2 of Part IIIA;
and
(b) that has any bearing on the
individual’s credit worthiness; and
(c) that is used, has been used or
could be used in establishing the individual’s eligibility for consumer credit.
CRB derived information about an individual
means any personal information (other than sensitive information) about the
individual:
(a) that is derived by a credit
reporting body from credit information about the individual that is held by the
body; and
(b) that has any bearing on the
individual’s credit worthiness; and
(c) that is used, has been used or
could be used in establishing the individual’s eligibility for consumer credit.
CR code has the meaning given by section 26N.
CR code developer means:
(a) an entity that is subject to
Part IIIA; or
(b) a group of entities that are
subject to Part IIIA; or
(c) a body or association representing
one or more entities that are subject to Part IIIA.
credit has the meaning given by subsections 6M(1)
and (3).
credit card means any article of a kind
commonly known as a credit card, charge card or any similar article intended
for use in obtaining cash, goods or services by means of credit, and includes
any article of a kind commonly issued by persons carrying on business to
customers or prospective customers of those persons for use in obtaining goods
or services from those persons by means of credit.
credit eligibility information about an
individual means:
(a) credit reporting information about
the individual that was disclosed to a credit provider by a credit reporting
body under Division 2 of Part IIIA; or
(b) CP derived information about the
individual.
credit enhancement, in relation to credit,
means:
(a) the process of insuring risk
associated with purchasing or funding the credit by means of a securitisation
arrangement; or
(b) any other similar process related
to purchasing or funding the credit by those means.
credit guarantee purpose of a credit provider
in relation to an individual means the purpose of assessing whether to accept
the individual as a guarantor in relation to:
(a) credit provided by the provider to
a person other than the individual; or
(b) credit for which an application
has been made to the provider by a person other than the individual.
credit information has the meaning given by
section 6N.
credit provider has the meaning given by sections 6G
to 6K, and, for the purposes of sections 7 and 8 and Parts III, IIIB, IV
and V, is taken to include a mortgage insurer and a trade insurer.
credit reporting body means:
(a) an organisation; or
(b) an agency prescribed by the
regulations;
that carries on a credit reporting business.
credit reporting business has the meaning
given by section 6P.
credit reporting complaint means a complaint
about an act or practice that, if established, would be an interference with
the privacy of an individual because:
(a) it breached the registered CR code;
or
(b) it breached a provision of Part IIIA.
credit reporting information about an
individual means credit information, or CRB derived information, about the
individual.
credit worthiness of an individual means the
individual’s:
(a) eligibility to be provided with
consumer credit; or
(b) history in relation to consumer
credit; or
(c) capacity to repay an amount of
credit that relates to consumer credit.
de facto partner of an individual
has the meaning given by the Acts Interpretation Act 1901.
default information has the meaning given by
section 6Q.
Defence Department means the Department of
State that deals with defence and that is administered by the Minister
administering section 1 of the Defence Act 1903.
Defence Force includes the Australian Navy
Cadets, the Australian Army Cadets and the Australian Air Force Cadets.
de‑identified: personal information is de‑identified
if the information is no longer about an identifiable individual or an
individual who is reasonably identifiable.
Department means an Agency within the meaning
of the Public Service Act 1999.
eligible hearing service provider means an
entity (within the meaning of the Hearing Services Administration Act 1997):
(a) that is, or has at any time been,
engaged under Part 3 of the Hearing Services Administration Act 1997
to provide hearing services; and
(b) that is not covered by paragraph (a),
(b), (c), (d), (e), (f), (g), (h) or (j) of the definition of agency.
employee record, in relation to an employee,
means a record of personal information relating to the employment of the
employee. Examples of personal information relating to the employment of the
employee are health information about the employee and personal information
about all or any of the following:
(a) the engagement, training,
disciplining or resignation of the employee;
(b) the termination of the employment
of the employee;
(c) the terms and conditions of
employment of the employee;
(d) the employee’s personal and
emergency contact details;
(e) the employee’s performance or
conduct;
(f) the employee’s hours of
employment;
(g) the employee’s salary or wages;
(h) the employee’s membership of a
professional or trade association;
(i) the employee’s trade union
membership;
(j) the employee’s recreation, long
service, sick, personal, maternity, paternity or other leave;
(k) the employee’s taxation, banking
or superannuation affairs.
enactment includes a Norfolk Island
enactment.
enforcement body means:
(a) the Australian Federal Police; or
(aa) the Integrity Commissioner; or
(b) the ACC; or
(ba) the CrimTrac Agency; or
(c) Customs; or
(ca) the Immigration Department; or
(d) the Australian Prudential
Regulation Authority; or
(e) the Australian Securities and
Investments Commission; or
(ea) the Office of the Director of
Public Prosecutions, or a similar body established under a law of a State or
Territory; or
(f) another agency, to the extent
that it is responsible for administering, or performing a function under, a law
that imposes a penalty or sanction or a prescribed law; or
(g) another agency, to the extent that
it is responsible for administering a law relating to the protection of the
public revenue; or
(h) a police force or service of a
State or a Territory; or
(i) the New South Wales Crime
Commission; or
(j) the Independent Commission
Against Corruption of New South Wales; or
(k) the Police Integrity Commission of
New South Wales; or
(ka) the Independent Broad‑based Anti‑corruption
Commission of Victoria; or
(l) the Crime and Misconduct
Commission of Queensland; or
(la) the Corruption and Crime
Commission of Western Australia; or
(m) another prescribed authority or
body that is established under a law of a State or Territory to conduct
criminal investigations or inquiries; or
(n) a State or Territory authority, to
the extent that it is responsible for administering, or performing a function
under, a law that imposes a penalty or sanction or a prescribed law; or
(o) a State or Territory authority, to
the extent that it is responsible for administering a law relating to the
protection of the public revenue.
enforcement related activity means:
(a) the prevention, detection,
investigation, prosecution or punishment of:
(i) criminal offences; or
(ii) breaches of a law
imposing a penalty or sanction; or
(b) the conduct of surveillance
activities, intelligence gathering activities or monitoring activities; or
(c) the conduct of protective or
custodial activities; or
(d) the enforcement of laws relating
to the confiscation of the proceeds of crime; or
(e) the protection of the public
revenue; or
(f) the prevention, detection,
investigation or remedying of misconduct of a serious nature, or other conduct
prescribed by the regulations; or
(g) the preparation for, or conduct
of, proceedings before any court or tribunal, or the implementation of
court/tribunal orders.
entity means:
(a) an agency; or
(b) an organisation; or
(c) a small business operator.
Federal Circuit Court means the Federal
Circuit Court of Australia.
Federal Court means the Federal Court of
Australia.
file number complaint means a complaint about
an act or practice that, if established, would be an interference with the
privacy of an individual:
(a) because it breached a rule issued
under section 17; or
(b) because it involved an
unauthorised requirement or request for disclosure of a tax file number.
financial corporation means a financial
corporation within the meaning of paragraph 51(xx) of the Constitution.
foreign corporation means a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution.
Freedom of Information Act means the Freedom
of Information Act 1982.
generally available publication means a
magazine, book, article, newspaper or other publication that is, or will be,
generally available to members of the public:
(a) whether or not it is published in
print, electronically or in any other form; and
(b) whether or not it is available on
the payment of a fee.
genetic relative of an individual (the first
individual) means another individual who is related to the first
individual by blood, including but not limited to a sibling, a parent or a
descendant of the first individual.
government contract means a Commonwealth
contract or a State contract.
government related identifier of an
individual means an identifier of the individual that has been assigned by:
(a) an agency; or
(b) a State or Territory authority; or
(c) an agent of an agency, or a State
or Territory authority, acting in its capacity as agent; or
(d) a contracted service provider for
a Commonwealth contract, or a State contract, acting in its capacity as
contracted service provider for that contract.
guarantee includes an indemnity given against
the default of a person in making a payment in relation to credit that has been
applied for by, or provided to, the person.
guidance related functions has the meaning
given by subsection 28(1).
healthcare identifier has the meaning given
by the Healthcare Identifiers Act 2010.
healthcare identifier offence means:
(a) an offence against section 26
of the Healthcare Identifiers Act 2010; or
(b) an offence against section 6
of the Crimes Act 1914 that relates to an offence mentioned in paragraph (a)
of this definition.
Note: For ancillary offences, see section 11.6
of the Criminal Code.
health information means:
(a) information or an opinion about:
(i) the health or a
disability (at any time) of an individual; or
(ii) an individual’s
expressed wishes about the future provision of health services to him or her;
or
(iii) a health service
provided, or to be provided, to an individual;
that is also personal
information; or
(b) other personal information
collected to provide, or in providing, a health service; or
(c) other personal information about
an individual collected in connection with the donation, or intended donation,
by the individual of his or her body parts, organs or body substances; or
(d) genetic information about an
individual in a form that is, or could be, predictive of the health of
the individual or a genetic relative of the individual.
health service means:
(a) an activity performed in relation
to an individual that is intended or claimed (expressly or otherwise) by the
individual or the person performing it:
(i) to assess, record,
maintain or improve the individual’s health; or
(ii) to diagnose the
individual’s illness or disability; or
(iii) to treat the
individual’s illness or disability or suspected illness or disability; or
(b) the dispensing on prescription of
a drug or medicinal preparation by a pharmacist.
hearing services has the same meaning as in
the Hearing Services Administration Act 1997.
holds: an entity holds personal
information if the entity has possession or control of a record that contains
the personal information.
Note: See section 10 for when an agency is
taken to hold a record.
identification information about an
individual means:
(a) the individual’s full name; or
(b) an alias or previous name of the
individual; or
(c) the individual’s date of birth; or
(d) the individual’s sex; or
(e) the individual’s current or last
known address, and 2 previous addresses (if any); or
(f) the name of the individual’s
current or last known employer; or
(g) if the individual holds a driver’s
licence—the individual’s driver’s licence number.
identifier of an individual means a number,
letter or symbol, or a combination of any or all of those things, that is used
to identify the individual or to verify the identity of the individual, but
does not include:
(a) the individual’s name; or
(b) the individual’s ABN (within the
meaning of the A New Tax System (Australian Business Number) Act 1999);
or
(c) anything else prescribed by the
regulations.
Immigration Department means the Department
administered by the Minister administering the Migration Act 1958.
individual means a natural person.
information request has the meaning given by
section 6R.
Integrity Commissioner has the same meaning
as in the Law Enforcement Integrity Commissioner Act 2006.
intelligence agency means:
(a) the Australian Security
Intelligence Organisation;
(b) the Australian Secret Intelligence
Service; or
(c) the Office of National
Assessments.
interested party has the meaning given by
subsections 20T(3) and 21V(3).
interference with the privacy of an individual
has the meaning given by sections 13 to 13F.
licensee has the meaning given by the National
Consumer Credit Protection Act 2009.
managing credit does not include the act of
collecting overdue payments in relation to credit.
media organisation means an organisation
whose activities consist of or include the collection, preparation for
dissemination or dissemination of the following material for the purpose of
making it available to the public:
(a) material having the character of
news, current affairs, information or a documentary;
(b) material consisting of commentary
or opinion on, or analysis of, news, current affairs, information or a
documentary.
medical research includes epidemiological
research.
misconduct includes fraud, negligence,
default, breach of trust, breach of duty, breach of discipline or any other misconduct
in the course of duty.
monitoring related functions has the meaning
given by subsections 28A(1) and (2).
mortgage credit means consumer credit:
(a) that is provided in connection
with the acquisition, maintenance, renovation or improvement of real property;
and
(b) in relation to which the real
property is security.
mortgage insurance purpose of a mortgage
insurer in relation to an individual is the purpose of assessing:
(a) whether to provide insurance to,
or the risk of providing insurance to, a credit provider in relation to
mortgage credit:
(i) provided by the
provider to the individual; or
(ii) for which an
application to the provider has been made by the individual; or
(b) the risk of the individual
defaulting on mortgage credit in relation to which the insurer has provided
insurance to a credit provider; or
(c) the risk of the individual being
unable to meet a liability that might arise under a guarantee provided, or
proposed to be provided, in relation to mortgage credit provided by a credit
provider to another person.
mortgage insurer means an organisation, or
small business operator, that carries on a business or undertaking that
involves providing insurance to credit providers in relation to mortgage credit
provided by providers to other persons.
National Personal Insolvency Index has the
meaning given by the Bankruptcy Act.
new arrangement information has the meaning
given by section 6S.
nominated AGHS company
means a company that:
(a) is the nominated company (within
the meaning of Part 2 of the Hearing Services and AGHS Reform Act 1997);
and
(b) is
either:
(i) Commonwealth‑owned
(within the meaning of that Part); or
(ii) a corporation.
non‑profit organisation means an
organisation:
(a) that is a non‑profit organisation;
and
(b) that engages in activities for
cultural, recreational, political, religious, philosophical, professional,
trade or trade union purposes.
Norfolk Island agency
means:
(a) a Norfolk Island Minister; or
(b) a public sector agency (within the
meaning of the Public Sector Management Act 2000 of Norfolk Island); or
(c) a body (whether incorporated or
not), or a tribunal, established for a public purpose by or under a Norfolk
Island enactment, other than a body established or registered under:
(i) the Companies Act
1985 of Norfolk Island; or
(ii) the Associations
Incorporation Act 2005 of Norfolk Island; or
(d) a body established or appointed
by:
(i) the Administrator of
Norfolk Island; or
(ii) a Norfolk Island
Minister;
otherwise than by or under a
Norfolk Island enactment; or
(e) a person holding or performing the
duties of:
(i) an office established
by or under a Norfolk Island enactment; or
(ii) an appointment made
under a Norfolk Island enactment; or
(f) a person holding or performing
the duties of an appointment, where the appointment was made by:
(i) the Administrator of
Norfolk Island; or
(ii) a Norfolk Island
Minister;
otherwise than under a Norfolk
Island enactment; or
(g) a court of Norfolk Island.
Norfolk Island enactment means:
(a) an enactment (within the meaning
of the Norfolk Island Act 1979); or
(b) an instrument (including rules,
regulations or by‑laws) made under such an enactment;
and includes a Norfolk Island enactment as amended by
another Norfolk Island enactment.
Norfolk Island Justice Minister means the
Norfolk Island Minister who is responsible, or principally responsible, for the
administration of the Interpretation Act
1979 of Norfolk Island.
Norfolk Island Minister means a Minister of
Norfolk Island.
offence against this Act includes an offence
against section 6 of the Crimes Act 1914, or section 11.1,
11.2, 11.2A, 11.4 or 11.5 of the Criminal Code, that relates to an
offence against this Act.
Ombudsman means the Commonwealth Ombudsman.
organisation has the meaning given by section 6C.
overseas recipient, in relation to personal
information, has the meaning given by Australian Privacy Principle 8.1.
payment information has the meaning given by
section 6T.
penalty unit has the meaning given by section 4AA
of the Crimes Act 1914.
pending correction request in relation to
credit information or CRB derived information means:
(a) a request made under subsection 20T(1)
in relation to the information if a notice has not been given under subsection 20U(2)
or (3) in relation to the request; or
(b) a request made under subsection 21V(1)
in relation to the information if:
(i) the credit reporting
body referred to in subsection 20V(3) has been consulted about the request
under subsection 21V(3); and
(ii) a notice has not been
given under subsection 21W(2) or (3) in relation to the request.
pending dispute in relation to credit
information or CRB derived information means:
(a) a complaint made under section 23A
that relates to the information if a decision about the complaint has not been
made under subsection 23B(4); or
(b) a matter that relates to the
information and that is still being dealt with by a recognised external dispute
resolution scheme; or
(c) a complaint made to the
Commissioner under Part V that relates to the information and that is
still being dealt with.
permitted CP disclosure has the meaning given
by sections 21J to 21N.
permitted CP use has the meaning given by
section 21H.
permitted CRB disclosure has the meaning
given by section 20F.
permitted general situation has the meaning
given by section 16A.
permitted health situation has the meaning
given by section 16B.
personal information means information or an
opinion about an identified individual, or an individual who is reasonably
identifiable:
(a) whether the information or opinion
is true or not; and
(b) whether the information or opinion
is recorded in a material form or not.
personal insolvency information has the
meaning given by section 6U.
pre‑screening assessment means an assessment
made under paragraph 20G(2)(d).
principal executive, of an agency, has a
meaning affected by section 37.
purchase, in relation to credit, includes the
purchase of rights to receive payments relating to the credit.
recognised external dispute resolution scheme
means an external dispute resolution scheme recognised under section 35A.
record includes:
(a) a document; or
(b) an electronic or other device;
but does not include:
(d) a generally available publication;
or
(e) anything kept in a library, art
gallery or museum for the purposes of reference, study or exhibition; or
(f) Commonwealth records as defined
by subsection 3(1) of the Archives Act 1983 that are in the open
access period for the purposes of that Act; or
(fa) records (as defined in the Archives
Act 1983) in the care (as defined in that Act) of the National Archives of
Australia in relation to which the Archives has entered into arrangements with
a person other than a Commonwealth institution (as defined in that Act)
providing for the extent to which the Archives or other persons are to have
access to the records; or
(g) documents placed by or on behalf
of a person (other than an agency) in the memorial collection within the
meaning of the Australian War Memorial Act 1980; or
(h) letters or other articles in the
course of transmission by post.
Note: For document, see section 2B
of the Acts Interpretation Act 1901.
registered APP code has the meaning given by
section 26B.
registered CR code has the meaning given by
section 26M.
registered political party means a political
party registered under Part XI of the Commonwealth Electoral Act 1918.
regulated information of an affected
information recipient means:
(a) if the recipient is a mortgage
insurer or trade insurer—personal information disclosed to the recipient under
Division 2 or 3 of Part IIIA; or
(b) if the recipient is a body
corporate referred to in paragraph 21G(3)(b)—credit eligibility
information disclosed to the recipient under that paragraph; or
(c) if the recipient is a person
referred to in paragraph 21G(3)(c)—credit eligibility information
disclosed to the recipient under that paragraph; or
(d) if the recipient is an entity or
adviser referred to in paragraph 21N(2)(a)—credit eligibility information
disclosed to the recipient under subsection 21N(2).
repayment history information has the meaning
given by subsection 6V(1).
reporting entity has the same meaning as in
the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006.
representative complaint means a complaint
where the persons on whose behalf the complaint was made include persons other
than the complainant, but does not include a complaint that the Commissioner
has determined should no longer be continued as a representative complaint.
residential property has the meaning given by
section 204 of the National Credit Code (within the meaning of the National
Consumer Credit Protection Act 2009).
respondent for a complaint made under section 23A
means the credit reporting body or credit provider to which the complaint is
made.
responsible person has the meaning given by
section 6AA.
retention period has the meaning given by
sections 20W and 20X.
Secretary means an Agency Head within the
meaning of the Public Service Act 1999.
securitisation
arrangement means an arrangement:
(a) involving the funding, or proposed
funding, of:
(i) credit that has been,
or is to be, provided by a credit provider; or
(ii) the purchase of credit
by a credit provider;
by issuing instruments or
entitlements to investors; and
(b) under which payments to investors
in respect of such instruments or entitlements are principally derived,
directly or indirectly, from such credit.
securitisation related purpose of a credit
provider in relation to an individual is the purpose of:
(a) assessing the risk in purchasing,
by means of a securitisation arrangement, credit that has been provided to, or
applied for by:
(i) the individual; or
(ii) a person for whom the
individual is, or is proposing to be, a guarantor; or
(b) assessing the risk in undertaking
credit enhancement in relation to credit:
(i) that is, or is
proposed to be, purchased or funded by means of a securitisation arrangement;
and
(ii) that has been provided
to, or applied for by, the individual or a person for whom the individual is,
or is proposing to be, a guarantor.
sensitive information means:
(a) information or an opinion about an
individual’s:
(i) racial or ethnic
origin; or
(ii) political opinions; or
(iii) membership of a
political association; or
(iv) religious beliefs or
affiliations; or
(v) philosophical
beliefs; or
(vi) membership of a
professional or trade association; or
(vii) membership of a trade
union; or
(viii) sexual orientation or
practices; or
(ix) criminal record;
that is also personal
information; or
(b) health information about an
individual; or
(c) genetic information about an individual
that is not otherwise health information; or
(d) biometric information that is to
be used for the purpose of automated biometric verification or biometric
identification; or
(e) biometric templates.
serious credit infringement means:
(a) an act done by an individual that
involves fraudulently obtaining consumer credit, or attempting fraudulently to
obtain consumer credit; or
(b) an act done by an individual that
involves fraudulently evading the individual’s obligations in relation to
consumer credit, or attempting fraudulently to evade those obligations; or
(c) an act done by an individual if:
(i) a reasonable person
would consider that the act indicates an intention, on the part of the
individual, to no longer comply with the individual’s obligations in relation
to consumer credit provided by a credit provider; and
(ii) the provider has,
after taking such steps as are reasonable in the circumstances, been unable to
contact the individual about the act; and
(iii) at least 6 months have
passed since the provider last had contact with the individual.
small business has the meaning given by
section 6D.
small business operator has the meaning given
by section 6D.
solicits: an entity solicits
personal information if the entity requests another entity to provide the
personal information, or to provide a kind of information in which that
personal information is included.
staff of the Ombudsman means the persons
appointed or employed for the purposes of section 31 of the Ombudsman
Act 1976.
State includes the Australian Capital
Territory and the Northern Territory.
State contract means a contract, to which a
State or Territory or State or Territory authority is or was a party, under
which services are to be, or were to be, provided to a State or Territory
authority.
Note: See also subsection (9) about provision
of services to a State or Territory authority.
State or Territory authority has the meaning
given by section 6C.
subcontractor, for a government contract,
means an organisation:
(a) that is or was a party to a
contract (the subcontract):
(i) with a contracted
service provider for the government contract (within the meaning of paragraph (a)
of the definition of contracted service provider); or
(ii) with a subcontractor
for the government contract (under a previous application of this definition);
and
(b) that is or was responsible under
the subcontract for the provision of services to an agency or a State or
Territory authority, or to a contracted service provider for the government contract,
for the purposes (whether direct or indirect) of the government contract.
tax file number means a tax file number as
defined in Part VA of the Income Tax Assessment Act 1936.
tax file number information means
information, whether compiled lawfully or unlawfully, and whether recorded in a
material form or not, that records the tax file number of a person in a manner
connecting it with the person’s identity.
temporary public interest determination means
a determination made under section 80A.
trade insurance purpose of a trade insurer in
relation to an individual is the purpose of assessing:
(a) whether to provide insurance to,
or the risk of providing insurance to, a credit provider in relation to
commercial credit provided by the provider to the individual or another person;
or
(b) the risk of a person defaulting on
commercial credit in relation to which the insurer has provided insurance to a
credit provider.
trade insurer means an organisation, or small
business operator, that carries on a business or undertaking that involves
providing insurance to credit providers in relation to commercial credit
provided by providers to other persons.
trading corporation means a trading
corporation within the meaning of paragraph 51(xx) of the Constitution.
(1A) In order to avoid doubt, it is declared
that an ACT enactment is not a Commonwealth enactment for the purposes of this
Act.
(3) For the purposes of this Act, an act or
practice breaches a rule issued under section 17 if, and only if, it is
contrary to, or inconsistent with, the rule.
(4) The definition of individual
in subsection (1) shall not be taken to imply that references to persons
do not include persons other than natural persons.
(5) For the purposes of this Act, a person
shall not be taken to be an agency merely because the person is the holder of,
or performs the duties of:
(a) a prescribed office; or
(b) an office prescribed by
regulations made for the purposes of subparagraph 4(3)(b)(i) of the Freedom
of Information Act 1982; or
(c) an office established by or under
a Commonwealth enactment for the purposes of an agency; or
(ca) an office established by or under
a Norfolk Island enactment for the purposes of a Norfolk Island agency; or
(d) a judicial office or of an office
of magistrate; or
(e) an office of member of a tribunal
that is established by or under a law of the Commonwealth and that is
prescribed for the purposes of this paragraph; or
(f) an office of member of a tribunal
that is established by or under a Norfolk Island enactment and that is
prescribed for the purposes of this paragraph.
(6) For the purposes of this Act, the Defence
Department shall be taken to include the Defence Force.
(7) Nothing in this Act prevents a complaint
from:
(a) being both a file number complaint
and an APP complaint; or
(b) being both a file number complaint
and a credit reporting complaint; or
(c) being both a file number complaint
and a code complaint; or
(e) being both a code complaint and a
credit reporting complaint; or
(f) being both an APP complaint and a
credit reporting complaint; or
(g) being both an APP complaint and a
code complaint.
(8) For the purposes of this Act, the
question whether bodies corporate are related to each other is determined in
the manner in which that question is determined under the Corporations Act
2001.
(9) To avoid doubt, for the purposes of this
Act, services provided to an agency or a State or Territory
authority include services that consist of the provision of services to other
persons in connection with the performance of the functions of the agency or
State or Territory authority.
(10) For the purposes of this Act, a reference
to family in the definition of consumer credit in subsection 6(1),
and in sections 6D and 16, in relation to any individual is taken to
include the following (without limitation):
(a) a de facto partner
of the individual;
(b) someone who is the child of the
person, or of whom the person is the child, because of the definition of child
in subsection (11);
(c) anyone else who would be a member
of the individual’s family if someone mentioned in paragraph (a) or (b) is
taken to be a member of the individual’s family.
(10A) For the purposes of this Act, the Supreme
Court of Norfolk Island is taken not to be a federal court.
(11) In this section:
child: without limiting who is a child of a
person for the purposes of subsection (10), someone is the child
of a person if he or she is a child of the person within the meaning of the Family
Law Act 1975.
6AA
Meaning of responsible person
(1) A responsible person for an
individual is:
(a) a parent of the individual; or
(b) a child or sibling of the
individual if the child or sibling is at least 18 years old; or
(c) a spouse
or de facto partner of the individual; or
(d) a relative of the individual if
the relative is:
(i) at least 18 years old;
and
(ii) a member of the
individual’s household; or
(e) a guardian of the individual; or
(f) a person exercising an enduring
power of attorney granted by the individual that is exercisable in relation to
decisions about the individual’s health; or
(g) a person who has an intimate
personal relationship with the individual; or
(h) a person nominated by the
individual to be contacted in case of emergency.
(2) In this section:
child: without limiting who is a child of an
individual for the purposes of subsection (1), each of the following is a child
of an individual:
(a) an adopted child, stepchild,
exnuptial child or foster child of the individual;
(b) someone who is a child of the
individual within the meaning of the Family Law Act 1975.
parent: without limiting who is a parent of
an individual for the purposes of subsection (1), someone is a parent
of an individual if the individual is his or her child because of the
definition of child in this subsection.
relative of an individual (the first
individual) means a grandparent, grandchild, uncle, aunt, nephew or
niece of the first individual and for this purpose, relationships to the first
individual may also be traced to or through another individual who is:
(a) a de facto partner
of the first individual; or
(b) the child of the first individual
because of the definition of child in this subsection.
sibling of an individual includes:
(a) a half‑brother, half‑sister,
adoptive brother, adoptive sister, step‑brother, step‑sister, foster‑brother
and foster‑sister of the individual; and
(b) another individual if a
relationship referred to in paragraph (a) can be traced through a parent
of either or both of the individuals.
stepchild: without limiting who is a
stepchild of an individual, someone is a stepchild of an
individual if he or she would be the individual’s stepchild except that the
individual is not legally married to the
individual’s de facto partner.
6A
Breach of an Australian Privacy Principle
(1) For the purposes of this Act, an act or
practice breaches an Australian Privacy Principle if, and only
if, it is contrary to, or inconsistent with, that principle.
No breach—contracted service provider
(2) An act or practice does not breach
an Australian Privacy Principle if:
(a) the act is done, or the practice
is engaged in:
(i) by an organisation
that is a contracted service provider for a Commonwealth contract (whether or
not the organisation is a party to the contract); and
(ii) for the purposes of
meeting (directly or indirectly) an obligation under the contract; and
(b) the act or practice is authorised
by a provision of the contract that is inconsistent with the principle.
No breach—disclosure to the National Archives of Australia
(3) An act or practice does not breach
an Australian Privacy Principle if the act or practice involves the disclosure
by an organisation of personal information in a record (as defined in the Archives
Act 1983) solely for the purposes of enabling the National Archives of
Australia to decide whether to accept, or to arrange, care (as defined in that
Act) of the record.
No breach—act or practice outside Australia
(4) An act or
practice does not breach an Australian Privacy Principle if:
(a) the act is done, or the practice
is engaged in, outside Australia and the external Territories; and
(b) the act or practice is required by
an applicable law of a foreign country.
Effect despite subsection (1)
(5) Subsections (2), (3) and (4) have
effect despite subsection (1).
6B
Breach of a registered APP code
Breach if contrary to, or inconsistent with, code
(1) For the purposes of this Act, an act or
practice breaches a registered APP code if, and only if, it is
contrary to, or inconsistent with, the code.
No breach—contracted service provider
(2) An act or practice does not breach
a registered APP code if:
(a) the act is done, or the practice
is engaged in:
(i) by an organisation
that is a contracted service provider for a Commonwealth contract (whether or
not the organisation is a party to the contract); and
(ii) for the purposes of
meeting (directly or indirectly) an obligation under the contract; and
(b) the act or practice is authorised
by a provision of the contract that is inconsistent with the code.
No breach—disclosure to the National Archives of Australia
(3) An act or practice does not breach
a registered APP code if the act or practice involves the disclosure by an
organisation of personal information in a record (as defined in the Archives
Act 1983) solely for the purposes of enabling the National Archives of
Australia to decide whether to accept, or to arrange, care (as defined in that
Act) of the record.
No breach—act or practice outside Australia
(4) An act or practice does not breach
a registered APP code if:
(a) the act is done, or the practice
is engaged in, outside Australia and the external Territories; and
(b) the act or practice is required by
an applicable law of a foreign country.
Effect despite subsection (1)
(5) Subsections (2), (3) and (4) have
effect despite subsection (1).
6BA
Breach of the registered CR code
For the purposes of this Act, an act or
practice breaches the registered CR code if, and only if, it is contrary to, or
inconsistent with, the code.
6C
Organisations
What is an organisation?
(1) In this Act:
organisation means:
(a) an individual; or
(b) a body corporate; or
(c) a partnership; or
(d) any other unincorporated
association; or
(e) a
trust;
that is not a small business operator, a registered
political party, an agency, a State or Territory authority or a prescribed
instrumentality of a State or Territory.
Note: Regulations may prescribe an instrumentality
by reference to one or more classes of instrumentality. See subsection 13(3)
of the Legislative Instruments Act 2003.
Example: Regulations may prescribe an instrumentality of a
State or Territory that is an incorporated company, society or association and
therefore not a State or Territory authority.
Legal person treated as different organisations in
different capacities
(2) A legal person can have a number of
different capacities in which the person does things. In each of those
capacities, the person is taken to be a different organisation.
Example: In addition to his or her personal capacity, an
individual may be the trustee of one or more trusts. In his or her personal
capacity, he or she is one organisation. As trustee of each trust, he or she is
a different organisation.
What is a State or Territory authority?
(3) In this Act:
State or Territory authority means:
(a) a State or Territory Minister; or
(b) a Department of State of a State
or Territory; or
(c) a body (whether incorporated or
not), or a tribunal, established or appointed for a public purpose by or under
a law of a State or Territory, other than:
(i) an incorporated
company, society or association; or
(ii) an association of
employers or employees that is registered or recognised under a law of a State
or Territory dealing with the resolution of industrial disputes; or
(d) a body established or appointed,
otherwise than by or under a law of a State or Territory, by:
(i) a Governor of a State;
or
(ii) the Australian Capital
Territory Executive; or
(iii) the Administrator of
the Northern Territory; or
(iv) the Administrator of Norfolk Island; or
(v) a State or Territory
Minister; or
(e) a person holding or performing the
duties of an office established by or under, or an appointment made under, a
law of a State or Territory, other than the office of head of a State or
Territory Department (however described); or
(f) a person holding or performing
the duties of an appointment made, otherwise than under a law of a State or
Territory, by:
(i) a Governor of a State;
or
(ii) the Australian Capital
Territory Executive; or
(iii) the Administrator of
the Northern Territory; or
(iv) the Administrator of Norfolk Island; or
(v) a State or Territory
Minister; or
(g) a State or Territory court.
Making regulations to stop instrumentalities being
organisations
(4) Before the Governor‑General makes
regulations prescribing an instrumentality of a State or Territory for the
purposes of the definition of organisation in subsection (1),
the Minister must:
(a) be satisfied that the State or
Territory has requested that the instrumentality be prescribed for those
purposes; and
(b) consider:
(i) whether treating the
instrumentality as an organisation for the purposes of this Act adversely
affects the government of the State or Territory; and
(ii) the
desirability of regulating under this Act the collection, holding, use,
correction and disclosure of personal information by the instrumentality; and
(iii) whether the law of the
State or Territory regulates the collection, holding, use, correction and
disclosure of personal information by the instrumentality to a standard that is
at least equivalent to the standard that would otherwise apply to the
instrumentality under this Act; and
(c) consult the Commissioner about the
matters mentioned in subparagraphs (b)(ii) and (iii).
State does not include Territory
(5) In this
section:
State does not include the Australian Capital
Territory or the Northern Territory (despite subsection 6(1)).
6D
Small business and small business operators
What is a small business?
(1) A business is a small business
at a time (the test time) in a financial year (the current
year) if its annual turnover for the previous financial year is
$3,000,000 or less.
Test for new business
(2) However, if there was no time in the
previous financial year when the business was carried on, the business is a
small business at the test time only if its annual turnover for the current
year is $3,000,000 or less.
What is a small business operator?
(3) A small business operator
is an individual, body corporate, partnership, unincorporated association or
trust that:
(a) carries on one or more small
businesses; and
(b) does not carry on a business that
is not a small business.
Entities that are not small business operators
(4) However, an individual, body corporate,
partnership, unincorporated association or trust is not a small business
operator if he, she or it:
(a) carries on a business that has had
an annual turnover of more than $3,000,000 for a financial year that has ended
after the later of the following:
(i) the time he, she or it
started to carry on the business;
(ii) the commencement of
this section; or
(b) provides a health service to
another individual and holds any health information except in an employee
record; or
(c) discloses personal information
about another individual to anyone else for a benefit, service or advantage; or
(d) provides a benefit, service or
advantage to collect personal information about another individual from anyone
else; or
(e) is a contracted service provider
for a Commonwealth contract (whether or not a party to the contract); or
(f) is a credit reporting body.
Private affairs of small business operators who are
individuals
(5) Subsection (4) does not prevent an
individual from being a small business operator merely because he or she does
something described in paragraph (4)(b), (c) or (d):
(a) otherwise than in the course of a
business he or she carries on; and
(b) only for the purposes of, or in
connection with, his or her personal, family or household affairs.
Non‑business affairs of other small business operators
(6) Subsection (4) does not prevent a
body corporate, partnership, unincorporated association or trust from being a
small business operator merely because it does something described in paragraph (4)(b),
(c) or (d) otherwise than in the course of a business it carries on.
Disclosure compelled or made with consent
(7) Paragraph (4)(c)
does not prevent an individual, body corporate, partnership, unincorporated
association or trust from being a small business operator only because he, she
or it discloses personal information about another individual:
(a) with the consent of the other
individual; or
(b) as required or authorised by or
under legislation.
Collection with consent or under legislation
(8) Paragraph (4)(d) does not prevent an
individual, body corporate, partnership, unincorporated association or trust
from being a small business operator only because he, she or it:
(a) collects personal information
about another individual from someone else:
(i) with the consent of
the other individual; or
(ii) as required or
authorised by or under legislation; and
(b) provides a benefit, service or
advantage to be allowed to collect the information.
Related bodies corporate
(9) Despite subsection (3), a body
corporate is not a small business operator if it is related to a
body corporate that carries on a business that is not a small business.
6DA
What is the annual turnover of a business?
What is the annual turnover of a business for a
financial year?
(1) The annual turnover of a
business for a financial year is the total of the following that is earned in
the year in the course of the business:
(a) the proceeds of sales of goods
and/or services;
(b) commission income;
(c) repair and service income;
(d) rent, leasing and hiring income;
(e) government bounties and subsidies;
(f) interest, royalties and
dividends;
(g) other operating income.
Note: The annual turnover for a financial year of a
business carried on by an entity that does not carry on another business will
often be similar to the total of the instalment income the entity notifies to
the Commissioner of Taxation for the 4 quarters in the year (or for the year,
if the entity pays tax in annual instalments).
(2) However, if a business has been carried
on for only part of a financial year, its annual turnover for the
financial year is the amount worked out using the formula:
6E
Small business operator treated as organisation
Small business operator that is a reporting entity
(1A) If a small business operator is a reporting
entity or an authorised agent of a reporting entity because of anything done in
the course of a small business carried on by the small business operator, this
Act applies, with the prescribed modifications (if any), in relation to the
activities carried on by the small business operator for the purposes of, or in
connection with, activities relating to:
(a) the Anti‑Money Laundering and
Counter‑Terrorism Financing Act 2006; or
(b) regulations or AML/CTF Rules under
that Act;
as if the small business operator were an organisation.
Note: The regulations may prescribe different
modifications of the Act for different small business operators. See subsection 33(3A)
of the Acts Interpretation Act 1901.
Small business operator that is a protected action
ballot agent under the Fair Work Act 2009
(1B) If a small business operator is the
protected action ballot agent for a protected action ballot conducted under
Part 3‑3 of the Fair Work Act 2009, this Act applies, with the
prescribed modifications (if any), in relation to the activities carried on by
the small business operator for the purpose of, or in connection with, the
conduct of the protected action ballot, as if the small business operator were
an organisation.
Note: The regulations may prescribe different
modifications of the Act for different small business operators. See subsection 33(3A)
of the Acts Interpretation Act 1901.
Small business operator that is an association of
employees that is registered or recognised under the Fair Work (Registered
Organisations) Act 2009
(1C) If a small business operator is an
association of employees that is registered or recognised under the Fair
Work (Registered Organisations) Act 2009, this Act applies, with the
prescribed modifications (if any), in relation to the activities carried on by
the small business operator, as if the small business operator were an
organisation (within the meaning of this Act).
Note: The regulations may prescribe different
modifications of the Act for different small business operators. See subsection 33(3A)
of the Acts Interpretation Act 1901.
Regulations treating a small business operator as an
organisation
(1) This Act applies, with the prescribed
modifications (if any), in relation to a small business operator prescribed for
the purposes of this subsection as if the small business operator were an
organisation.
Note 1: The regulations may prescribe different
modifications of the Act for different small business operators. See subsection 33(3A)
of the Acts Interpretation Act 1901.
Note 2: Regulations may prescribe a small business
operator by reference to one or more classes of small business operator. See subsection 13(3)
of the Legislative Instruments Act 2003.
Regulations treating a small business operator as an
organisation for particular acts or practices
(2) This Act also applies, with the
prescribed modifications (if any), in relation to the prescribed acts or
practices of a small business operator prescribed for the purposes of this
subsection as if the small business operator were an organisation.
Note 1: The regulations may prescribe different
modifications of the Act for different acts, practices or small business
operators. See subsection 33(3A) of the Acts Interpretation Act 1901.
Note 2: Regulations may prescribe an act, practice or
small business operator by reference to one or more classes of acts, practices
or small business operators. See subsection 13(3) of the Legislative
Instruments Act 2003.
Definition
(3) In this
section:
protected action ballot agent means a person
(other than the Australian Electoral Commission) that conducts a protected
action ballot under Part 3‑3 of the Fair Work Act 2009.
Making regulations
(4) Before the Governor‑General makes
regulations prescribing a small business operator, act or practice for the
purposes of subsection (1) or (2), the Minister must:
(a) be satisfied that it is desirable
in the public interest to regulate under this Act the small business operator,
act or practice; and
(b) consult the Commissioner about the
desirability of regulating under this Act the matters described in paragraph (a).
6EA
Small business operators choosing to be treated as organisations
(1) This Act applies in relation to a small business
operator as if the operator were an organisation while a choice by the operator
to be treated as an organisation is registered under this section.
(2) A small business operator may make a
choice in writing given to the Commissioner to be treated as an organisation.
Note: A small business operator may revoke such a
choice by writing given to the Commissioner. See subsection 33(3) of the Acts
Interpretation Act 1901.
(3) If the Commissioner is satisfied that a
small business operator has made the choice to be treated as an organisation,
the Commissioner must enter in a register of operators who have made such a
choice:
(a) the name or names under which the
operator carries on business; and
(b) the operator’s ABN, if the
operator has one under the A New Tax System (Australian Business Number) Act
1999.
(4) If a small business operator revokes a
choice to be treated as an organisation, the Commissioner must remove from the
register the material relating to the operator.
(5) The Commissioner may decide the form of
the register and how it is to be kept.
(6) The Commissioner must make the register
available to the public in the way that the Commissioner determines. However,
the Commissioner must not make available to the public in the register information
other than that described in subsection (3).
6F
State instrumentalities etc. treated as organisations
Regulations treating a State instrumentality etc. as an
organisation
(1) This Act applies, with the prescribed
modifications (if any), in relation to a prescribed State or Territory
authority or a prescribed instrumentality of a State or Territory (except an
instrumentality that is an organisation because of section 6C) as if the
authority or instrumentality were an organisation.
Note 1: The regulations may prescribe different
modifications of the Act for different authorities or instrumentalities. See
subsection 33(3A) of the Acts Interpretation Act 1901.
Note 2: Regulations may prescribe an authority or
instrumentality by reference to one or more classes of authority or
instrumentality. See subsection 13(3) of the Legislative Instruments
Act 2003.
Making regulations to treat instrumentality etc. as
organisation
(3) Before the Governor‑General makes
regulations prescribing a State or Territory authority or instrumentality of a
State or Territory for the purposes of subsection (1), the Minister must:
(a) be satisfied that the relevant
State or Territory has requested that the authority or instrumentality be
prescribed for those purposes; and
(b) consult the Commissioner about the
desirability of regulating under this Act the collection, holding, use,
correction and disclosure of personal information by the authority or
instrumentality.
Division 2—Key definitions
relating to credit reporting
Subdivision A—Credit provider
6G Meaning of credit
provider
General
(1) Each of the following is a credit
provider:
(a) a bank;
(b) an organisation or small business
operator if:
(i) the organisation or
operator carries on a business or undertaking; and
(ii) a substantial part of
the business or undertaking is the provision of credit;
(c) an organisation or small business
operator:
(i) that carries on a
retail business; and
(ii) that, in the course of
the business, issues credit cards to individuals in connection with the sale of
goods, or the supply of services, by the organisation or operator (as the case
may be);
(d) an agency, organisation or small
business operator:
(i) that carries on a
business or undertaking that involves providing credit; and
(ii) that is prescribed by
the regulations.
Other credit providers
(2) If:
(a) an organisation or small business
operator (the supplier) carries on a business or undertaking in
the course of which the supplier provides credit in connection with the sale of
goods, or the supply of services, by the supplier; and
(b) the repayment, in full or in part,
of the amount of credit is deferred for at least 7 days; and
(c) the supplier is not a credit
provider under subsection (1);
then the supplier is a credit provider but
only in relation to the credit.
(3) If:
(a) an organisation or small business
operator (the lessor) carries on a business or undertaking in the
course of which the lessor provides credit in connection with the hiring,
leasing or renting of goods; and
(b) the credit is in force for at
least 7 days; and
(c) no amount, or an amount less than
the value of the goods, is paid as a deposit for the return of the goods; and
(d) the lessor is not a credit
provider under subsection (1);
then the lessor is a credit provider but
only in relation to the credit.
(4) An organisation or small business
operator is a credit provider if subsection 6H(1), 6J(1) or
6K(1) provides that the organisation or operator is a credit provider.
Exclusions
(5) Despite subsections (1) to (4) of
this section, an organisation or small business operator acting in the capacity
of:
(a) a real estate agent; or
(b) a general insurer (within the
meaning of the Insurance Act 1973); or
(c) an employer of an individual;
is not a credit provider while acting in
that capacity.
(6) Despite subsections (1) to (4) of
this section, an organisation or small business operator is not a credit
provider if it is included in a class of organisations or operators
prescribed by the regulations.
6H
Agents of credit providers
(1) If an organisation or small business
operator (the agent) is acting as an agent of a credit provider
(the principal) in performing, on behalf of the principal, a task
that is reasonably necessary:
(a) in processing an application for
credit made to the principal; or
(b) in managing credit provided by the
principal;
then, while the agent is so acting, the agent is a credit
provider.
(2) Subsection (1) does not apply if the
principal is an organisation or small business operator that is a credit
provider because of a previous application of that subsection.
(3) If subsection (1) applies in relation
to credit that has been provided by the principal, the credit is taken, for the
purposes of this Act, to have been provided by both the principal and the
agent.
(4) If subsection (1) applies in
relation to credit for which an application has been made to the principal, the
application is taken, for the purposes of this Act, to have been made to both
the principal and the agent.
6J
Securitisation arrangements etc.
(1) If:
(a) an organisation or small business
operator (the securitisation entity) carries on a business that
is involved in either or both of the following:
(i) a securitisation
arrangement;
(ii) managing credit that
is the subject of a securitisation arrangement; and
(b) the securitisation entity performs
a task that is reasonably necessary for:
(i) purchasing, funding or
managing, or processing an application for, credit by means of a securitisation
arrangement; or
(ii) undertaking credit
enhancement in relation to credit; and
(c) the credit has been provided by,
or is credit for which an application has been made to, a credit provider (the original
credit provider);
then, while the securitisation entity performs such a
task, the securitisation entity is a credit provider.
(2) Subsection (1) does not apply if the
original credit provider is an organisation or small business operator that is
a credit provider because of a previous application of that subsection.
(3) If subsection (1) applies in
relation to credit that has been provided by the original credit provider, the
credit is taken, for the purposes of this Act, to have been provided by both
the original credit provider and the securitisation entity.
(4) If subsection (1) applies in
relation to credit for which an application has been made to the original
credit provider, the application is taken, for the purposes of this Act, to
have been made to both the original credit provider and the securitisation
entity.
6K
Acquisition of the rights of a credit provider
(1) If:
(a) an organisation or small business
operator (the acquirer) acquires, whether by assignment,
subrogation or any other means, the rights of a credit provider (the original
credit provider) in relation to the repayment of an amount of credit;
and
(b) the acquirer is not a credit
provider under subsection 6G(1);
then the acquirer is a credit provider but
only in relation to the credit.
(2) If subsection (1) of this section
applies in relation to credit that has been provided by the original credit
provider, the credit is taken, for the purposes of this Act, to have been
provided by the acquirer.
(3) If subsection (1) of this section
applies in relation to credit for which an application has been made to the
original credit provider, the application is taken, for the purposes of this
Act, to have been made to the acquirer.
Subdivision B—Other definitions
6L
Meaning of access seeker
(1) An access seeker in
relation to credit reporting information, or credit eligibility information,
about an individual is:
(a) the individual; or
(b) a person:
(i) who is assisting the
individual to deal with a credit reporting body or credit provider; and
(ii) who is authorised, in
writing, by the individual to make a request in relation to the information
under subsection 20R(1) or 21T(1).
(2) An individual must not authorise a person
under subparagraph (1)(b)(ii) if the person is:
(a) a credit provider; or
(b) a mortgage insurer; or
(c) a trade insurer; or
(d) a person who is prevented from
being a credit provider by subsection 6G(5) or (6).
(3) Subparagraph (1)(b)(ii) does not
apply to a person who provides the National Relay Service or a person prescribed by the regulations.
6M
Meaning of credit and amount of credit
(1) Credit is a contract,
arrangement or understanding under which:
(a) payment of a debt owed by one
person to another person is deferred; or
(b) one person incurs a debt to
another person and defers the payment of the debt.
(2) The amount of credit is the
amount of the debt that is actually deferred, or that may be deferred, but does
not include any fees or charges payable in connection with the deferral of the
debt.
(3) Without limiting subsection (1), credit
includes:
(a) a hire‑purchase agreement; and
(b) a contract, arrangement or
understanding of a kind referred to in that subsection that is for the hire,
lease or rental of goods, or for the supply of services, other than a contract,
arrangement or understanding under which:
(i) full payment is made
before, or at the same time as, the goods or services are provided; and
(ii) in the case of
goods—an amount greater than, or equal to, the value of the goods is paid as a
deposit for the return of the goods.
6N
Meaning of credit information
Credit information about
an individual is personal information (other than sensitive information) that
is:
(a) identification information about
the individual; or
(b) consumer credit liability
information about the individual; or
(c) repayment history information
about the individual; or
(d) a statement that an information
request has been made in relation to the individual by a credit provider,
mortgage insurer or trade insurer; or
(e) the type of consumer credit or
commercial credit, and the amount of credit, sought in an application:
(i) that has been made by
the individual to a credit provider; and
(ii) in connection with
which the provider has made an information request in relation to the
individual; or
(f) default information about the
individual; or
(g) payment information about the
individual; or
(h) new arrangement information about
the individual; or
(i) court proceedings information
about the individual; or
(j) personal insolvency information
about the individual; or
(k) publicly available information
about the individual:
(i) that relates to the
individual’s activities in Australia or the external Territories and the
individual’s credit worthiness; and
(ii) that is not court
proceedings information about the individual or information about the individual
that is entered or recorded on the National Personal Insolvency Index; or
(l) the opinion of a credit provider
that the individual has committed, in circumstances specified by the provider,
a serious credit infringement in relation to consumer credit provided by the
provider to the individual.
6P
Meaning of credit reporting business
(1) A credit reporting business
is a business or undertaking that involves collecting, holding, using or
disclosing personal information about individuals for the purpose of, or for
purposes including the purpose of, providing an entity with information about
the credit worthiness of an individual.
(2) Subsection (1) applies whether or
not the information about the credit worthiness of an individual is:
(a) provided for profit or reward; or
(b) provided, or intended to be
provided, for the purposes of assessing an application for consumer credit.
(3) In determining whether a business or
undertaking carried on by a credit provider is a credit reporting business, disregard
the provision of information about the credit worthiness of an individual to a
related body corporate by the provider.
(4) Despite subsection (1), a business
or undertaking is not a credit reporting business if the business
or undertaking is included in a class of businesses or undertakings prescribed
by the regulations.
6Q
Meaning of default information
Consumer credit defaults
(1) Default information about
an individual is information about a payment (including a payment that
is wholly or partly a payment of interest) that the individual is overdue in
making in relation to consumer credit that has been provided by a credit
provider to the individual if:
(a) the individual is at least 60 days
overdue in making the payment; and
(b) the provider has given a written
notice to the individual informing the individual of the overdue payment and
requesting that the individual pay the amount of the overdue payment; and
(c) the provider is not prevented by a
statute of limitations from recovering the amount of the overdue payment; and
(d) the amount of the overdue payment
is equal to or more than:
(i) $150; or
(ii) such higher amount as
is prescribed by the regulations.
Guarantor defaults
(2) Default information about
an individual is information about a payment that the individual is
overdue in making as a guarantor under a guarantee given against any default by
a person (the borrower) in repaying all or any of the debt
deferred under consumer credit provided by a credit provider to the borrower
if:
(a) the provider has given the
individual written notice of the borrower’s default that gave rise to the
individual’s obligation to make the overdue payment; and
(b) the notice requests that the
individual pay the amount of the overdue payment; and
(c) at least 60 days have passed since
the day on which the notice was given; and
(d) in addition to giving the notice,
the provider has taken other steps to recover the amount of the overdue payment
from the individual; and
(e) the provider is not prevented by a
statute of limitations from recovering the amount of the overdue payment.
6R
Meaning of information request
Credit provider
(1) A credit provider has made an information
request in relation to an individual if the provider has sought
information about the individual from a credit reporting body:
(a) in connection with an application
for consumer credit made by the individual to the provider; or
(b) in connection with an application
for commercial credit made by a person to the provider; or
(c) for a credit guarantee purpose of
the provider in relation to the individual; or
(d) for a securitisation related
purpose of the provider in relation to the individual.
Mortgage insurer
(2) A mortgage insurer has made an information
request in relation to an individual if:
(a) the insurer has sought information
about the individual from a credit reporting body; and
(b) the information was sought in
connection with the provision of insurance to a credit provider in relation to
mortgage credit provided by the provider to:
(i) the individual; or
(ii) a person for whom the
individual is, or is proposing to be, a guarantor.
Trade insurer
(3) A trade insurer has made an information
request in relation to an individual if:
(a) the insurer has sought information
about the individual from a credit reporting body; and
(b) the information was sought in
connection with the provision of insurance to a credit provider in relation to
commercial credit provided by the provider to the individual or another person.
6S Meaning
of new arrangement information
Consumer credit defaults
(1) If:
(a) a credit provider has disclosed
default information about an individual to a credit reporting body; and
(b) the default information relates to
a payment that the individual is overdue in making in relation to consumer
credit (the original consumer credit) that has been provided by
the provider to the individual; and
(c) because of the individual being so
overdue:
(i) the terms or
conditions of the original consumer credit that relate to the repayment of the
amount of credit are varied; or
(ii) the individual is
provided with other consumer credit (the new consumer credit) by
a credit provider that relates, wholly or in part, to that amount of credit;
then new arrangement information about the
individual is a statement that those terms or conditions of the original
consumer credit have been varied, or that the individual has been provided with
the new consumer credit.
Serious credit infringements
(2) If:
(a) a credit provider is of the
opinion that an individual has committed a serious credit infringement in
relation to consumer credit (the original consumer credit)
provided by the provider to the individual; and
(b) the provider has disclosed the
opinion to a credit reporting body; and
(c) because of the provider having
that opinion:
(i) the terms or
conditions of the original consumer credit that relate to the repayment of the
amount of credit are varied; or
(ii) the individual is
provided with other consumer credit (the new consumer credit) by
a credit provider that relates, wholly or in part, to that amount of credit;
then new arrangement information about the
individual is a statement that those terms or conditions of the original
consumer credit have been varied, or that the individual has been provided with
the new consumer credit.
6T
Meaning of payment information
If:
(a) a credit provider has disclosed
default information about an individual to a credit reporting body; and
(b) on a day after the default
information was disclosed, the amount of the overdue payment to which the
information relates is paid;
then payment information about the
individual is a statement that the amount of the overdue payment has been paid
on that day.
6U
Meaning of personal insolvency information
(1) Personal insolvency information
about an individual is information:
(a) that is entered or recorded in the
National Personal Insolvency Index; and
(b) that relates to:
(i) a bankruptcy of the
individual; or
(ii) a debt agreement
proposal given by the individual; or
(iii) a debt agreement made
by the individual; or
(iv) a personal insolvency
agreement executed by the individual; or
(v) a direction given, or
an order made, under section 50 of the Bankruptcy Act that relates to the
property of the individual; or
(vi) an authority signed
under section 188 of that Act that relates to the property of the
individual.
(2) Despite subparagraph (1)(b)(i),
personal insolvency information about an individual must not relate to:
(a) the presentation of a creditor’s
petition against the individual; or
(b) an administration under
Part XI of the Bankruptcy Act of the individual’s estate.
(3) An expression used in paragraph (1)(b)
or (2)(a) that is also used in the Bankruptcy Act has the same meaning in that
paragraph as it has in that Act.
6V
Meaning of repayment history information
(1) If a credit provider provides consumer
credit to an individual, the following information about the consumer credit is
repayment history information about the individual:
(a) whether or not the individual has
met an obligation to make a monthly payment that is due and payable in relation
to the consumer credit;
(b) the day on which the monthly
payment is due and payable;
(c) if the individual makes the
monthly payment after the day on which the payment is due and payable—the day
on which the individual makes that payment.
(2) The regulations may make provision in
relation to:
(a) whether or not an individual has
met an obligation to make a monthly payment that is due and payable in relation
to consumer credit; and
(b) whether or not a payment is a
monthly payment.
Division 3—Other matters
7 Acts
and practices of agencies, organisations etc.
(1) Except so far as the contrary intention
appears, a reference in this Act (other than section 8) to an act or to a
practice is a reference to:
(a) an act done, or a practice engaged
in, as the case may be, by an agency (other than an eligible hearing service
provider), a file number recipient, a credit reporting body or a credit
provider other than:
(i) an agency specified in
any of the following provisions of the Freedom of Information Act 1982:
(A) Schedule 1;
(B) Division 1
of Part I of Schedule 2;
(C) Division 1
of Part II of Schedule 2; or
(ii) a federal court; or
(iia) a court of Norfolk
Island; or
(iii) a Minister; or
(iiiaa) a Norfolk Island
Minister; or
(iiia) the Integrity
Commissioner; or
(iv) the ACC; or
(v) a Royal Commission; or
(vi) a Commission of inquiry;
or
(b) an act done, or a practice engaged
in, as the case may be, by a federal court or by an agency specified in
Schedule 1 to the Freedom of Information Act 1982, being an act
done, or a practice engaged in, in respect of a matter of an administrative
nature; or
(ba) an act done, or a practice engaged
in, as the case may be, by a court of Norfolk Island, being an act done, or a
practice engaged in, in respect of a matter of an administrative nature; or
(c) an act done, or a practice engaged
in, as the case may be, by an agency specified in Division 1 of Part II
of Schedule 2 to the Freedom of Information Act 1982, other than an
act done, or a practice engaged in, in relation to a record in relation to
which the agency is exempt from the operation of that Act; or
(ca) an act done, or a practice engaged
in, as the case may be, by a part of the Defence Department specified in
Division 2 of Part I of Schedule 2 to the Freedom of
Information Act 1982, other than an act done, or a practice engaged in, in
relation to the activities of that part of the Department; or
(cc) an act done, or a practice engaged
in, as the case may be, by an eligible hearing service provider in connection
with the provision of hearing services under an agreement made under Part 3
of the Hearing Services Administration Act 1997; or
(d) an act done, or a practice engaged
in, as the case may be, by a Minister in relation to the affairs of an agency
(other than a Norfolk Island agency or an eligible hearing service provider),
not being an act done, or a practice engaged in, in relation to an existing
record; or
(e) an act done, or a practice engaged
in, as the case may be, by a Minister in relation to a record that is in the
Minister’s possession in his or her capacity as a Minister and relates to the
affairs of an agency (other than a Norfolk Island agency or an eligible hearing
service provider); or
(eaa) an act done, or a practice engaged
in, as the case may be, by a Norfolk Island Minister in relation to the affairs
of a Norfolk Island agency, not being an act done, or a practice engaged in, in
relation to an existing record; or
(eab) an act done, or a practice engaged
in, as the case may be, by a Norfolk Island Minister in relation to a record
that is in the Norfolk Island Minister’s possession in his or her capacity as a
Norfolk Island Minister and relates to the affairs of a Norfolk Island agency;
or
(ec) an act done, or a practice engaged
in, as the case may be, by a Minister in relation to the affairs of an eligible
hearing service provider, being affairs in connection with the provision of
hearing services under an agreement made under Part 3 of the Hearing
Services Administration Act 1997; or
(ed) an act done, or a practice engaged
in, as the case may be, by a Minister in relation to a record that is in the
Minister’s possession in his or her capacity as a Minister and relates to the
affairs of an eligible hearing service provider, being affairs in connection
with the provision of hearing services under an agreement made under Part 3
of the Hearing Services Administration Act 1997; or
(ee) an act done, or a practice engaged
in, by an organisation, other than an exempt act or exempt practice (see
sections 7B and 7C);
but does not include a reference to an act done, or a
practice engaged in, in relation to a record that has originated with, or has
been received from:
(f) an intelligence agency;
(g) the Defence Intelligence
Organisation, the Defence Imagery and Geospatial Organisation or the Defence
Signals Directorate of the Defence Department; or
(ga) the Integrity Commissioner or a
staff member of ACLEI (within the meaning of the Law Enforcement Integrity
Commissioner Act 2006); or
(h) the ACC or the Board of the ACC.
(1A) Despite subsections (1) and (2), a
reference in this Act (other than section 8) to an act or to a practice
does not include a reference to the act or practice so far as it involves the
disclosure of personal information to:
(a) the Australian Security Intelligence
Organisation; or
(b) the Australian Secret Intelligence
Service; or
(c) the Defence Signals Directorate of
the Defence Department.
(2) Except so far as the contrary intention
appears, a reference in this Act (other than section 8) to an act or to a
practice includes, in the application of this Act otherwise than in respect of
the Australian Privacy Principles, a registered APP code and the performance of
the Commissioner’s functions in relation to the principles and such a code, a
reference to an act done, or a practice engaged in, as the case may be, by an
agency specified in Part I of Schedule 2 to the Freedom of
Information Act 1982 or in Division 1 of Part II of that Schedule
other than:
(a) an intelligence agency;
(b) the Defence Intelligence
Organisation, the Defence Imagery and Geospatial Organisation or the Defence
Signals Directorate of the Defence Department; or
(c) the ACC or the Board of the ACC.
(3) Except so far as the contrary intention
appears, a reference in this Act to doing an act includes a reference to:
(a) doing an act in accordance with a
practice; or
(b) refusing or failing to do an act.
(4) For the purposes of section 28, of
paragraphs 28A(2)(a) to (e), of subsection 31(2) and of Part VI, this
section has effect as if a reference in subsection (1) of this section to
an act done, or to a practice engaged in, included a reference to an act that
is proposed to be done, or to a practice that is proposed to be engaged in, as
the case may be.
7A
Acts of certain agencies treated as acts of organisation
(1) This Act applies, with the prescribed
modifications (if any), in relation to an act or practice described in subsection (2)
or (3) as if:
(a) the act or practice were an act
done, or practice engaged in, by an organisation; and
(b) the agency mentioned in that
subsection were the organisation.
(2) Subsection (1) applies to acts done,
and practices engaged in, by a prescribed agency. Regulations for this purpose
may prescribe an agency only if it is specified in Part I of Schedule 2
to the Freedom of Information Act 1982.
(3) Subsection (1) also applies to acts
and practices that:
(a) are done or engaged in by an
agency specified in Division 1 of Part II of Schedule 2 to the Freedom
of Information Act 1982 in relation to documents in respect of its
commercial activities or the commercial activities of another entity; and
(b) relate to those commercial
activities.
(4) This section has effect despite
subparagraph 7(1)(a)(i), paragraph 7(1)(c) and subsection 7(2).
7B
Exempt acts and exempt practices of organisations
Individuals in non‑business capacity
(1) An act done, or practice engaged in, by
an organisation that is an individual is exempt for the purposes
of paragraph 7(1)(ee) if the act is done, or the practice is engaged in,
other than in the course of a business carried on by the individual.
Note: See also section 16 which provides that
the Australian Privacy Principles do not apply for the purposes of, or in
connection with, an individual’s personal, family or household affairs.
Organisation acting under Commonwealth contract
(2) An act done, or practice engaged in, by
an organisation is exempt for the purposes of paragraph 7(1)(ee)
if:
(a) the organisation is a contracted
service provider for a Commonwealth contract (whether or not the organisation
is a party to the contract); and
(b) the organisation would be a small
business operator if it were not a contracted service provider for a
Commonwealth contract; and
(c) the act is done, or the practice
is engaged in, otherwise than for the purposes of meeting (directly or
indirectly) an obligation under a Commonwealth contract for which the
organisation is the contracted service provider.
Note: This puts the organisation in the same
position as a small business operator as far as its activities that are not for
the purposes of a Commonwealth contract are concerned, so the organisation need
not comply with the Australian Privacy Principles, or a registered APP code
that binds the organisation, in relation to those activities.
Employee records
(3) An act done, or practice engaged in, by
an organisation that is or was an employer of an individual, is exempt
for the purposes of paragraph 7(1)(ee) if the act or practice is directly
related to:
(a) a current or former employment
relationship between the employer and the individual; and
(b) an employee record held by the
organisation and relating to the individual.
Journalism
(4) An act done, or practice engaged in, by a
media organisation is exempt for the purposes of paragraph 7(1)(ee)
if the act is done, or the practice is engaged in:
(a) by the organisation in the course
of journalism; and
(b) at a time when the organisation is
publicly committed to observe standards that:
(i) deal with privacy in the
context of the activities of a media organisation (whether or not the standards
also deal with other matters); and
(ii) have been published in
writing by the organisation or a person or body representing a class of media
organisations.
Organisation acting under State contract
(5) An act done, or practice engaged in, by
an organisation is exempt for the purposes of paragraph 7(1)(ee)
if:
(a) the organisation is a contracted
service provider for a State contract (whether or not the organisation is a party
to the contract); and
(b) the act is done, or the practice
is engaged in for the purposes of meeting (directly or indirectly) an
obligation under the contract.
7C
Political acts and practices are exempt
Members of a Parliament etc.
(1) An act done, or practice engaged in, by
an organisation (the political representative) consisting of a
member of a Parliament, or a councillor (however described) of a local
government authority, is exempt for the purposes of paragraph 7(1)(ee)
if the act is done, or the practice is engaged in, for any purpose in
connection with:
(a) an election under an electoral
law; or
(b) a referendum under a law of the
Commonwealth or a law of a State or Territory; or
(c) the participation by the political
representative in another aspect of the political process.
Contractors for political representatives etc.
(2) An act done, or practice engaged in, by
an organisation (the contractor) is exempt for the
purposes of paragraph 7(1)(ee) if the act is done or the practice is
engaged in:
(a) for the purposes of meeting an
obligation under a contract between the contractor and a registered political
party or a political representative described in subsection (1); and
(b) for any purpose in connection with
one or more of the following:
(i) an election under an
electoral law;
(ii) a referendum under a
law of the Commonwealth or a law of a State or Territory;
(iii) the participation in
another aspect of the political process by the registered political party or
political representative;
(iv) facilitating acts or
practices of the registered political party or political representative for a
purpose mentioned in subparagraph (i), (ii) or (iii) of this paragraph.
Subcontractors for organisations covered by subsection (1)
etc.
(3) An act done, or practice engaged in, by
an organisation (the subcontractor) is exempt for
the purposes of paragraph 7(1)(ee) if the act is done or the practice is
engaged in:
(a) for the purposes of meeting an
obligation under a contract between the subcontractor and a contractor
described in subsection (2); and
(b) for a purpose described in paragraph (2)(b).
Volunteers for registered political parties
(4) An act done voluntarily, or practice
engaged in voluntarily, by an organisation for or on behalf of a registered
political party and with the authority of the party is exempt for
the purposes of paragraph 7(1)(ee) if the act is done or the practice is
engaged in for any purpose in connection with one or more of the following:
(a) an election under an electoral
law;
(b) a referendum under a law of the
Commonwealth or a law of a State or Territory;
(c) the participation in another
aspect of the political process by the registered political party;
(d) facilitating acts or practices of
the registered political party for a purpose mentioned in paragraph (a),
(b) or (c).
Effect of subsection (4) on other operation of Act
(5) Subsection (4) does not otherwise
affect the operation of the Act in relation to agents or principals.
Meaning of electoral law and Parliament
(6) In
this section:
electoral law means a law of the
Commonwealth, or a law of a State or Territory, relating to elections to a
Parliament or to a local government authority.
Parliament means:
(a) the Parliament of the
Commonwealth; or
(b) a State Parliament; or
(c) the legislature of a Territory.
Note: To avoid doubt, this section does not make
exempt for the purposes of paragraph 7(1)(ee) an act or practice of the
political representative, contractor, subcontractor or volunteer for a registered
political party involving the use or disclosure (by way of sale or otherwise)
of personal information in a way not covered by subsection (1), (2), (3)
or (4) (as appropriate). The rest of this Act operates normally in relation to
that act or practice.
8 Acts
and practices of, and disclosure of information to, staff of agency,
organisation etc.
(1) For the purposes of this Act:
(a) an act done or practice engaged in
by, or information disclosed to, a person employed by, or in the service of, an
agency, organisation, file number recipient, credit reporting body or credit
provider in the performance of the duties of the person’s employment shall be
treated as having been done or engaged in by, or disclosed to, the agency,
organisation, recipient, credit reporting body or credit provider;
(b) an act done or practice engaged in
by, or information disclosed to, a person on behalf of, or for the purposes of
the activities of, an unincorporated body, being a board, council, committee,
sub‑committee or other body established by or under a Commonwealth enactment or
a Norfolk Island enactment for the purpose of assisting, or performing
functions in connection with, an agency or organisation, shall be treated as
having been done or engaged in by, or disclosed to, the agency or organisation;
and
(c) an act done or practice engaged in
by, or information disclosed to, a member, staff member or special member of
the Australian Federal Police in the performance of his or her duties as such a
member, staff member or special member shall be treated as having been done or
engaged in by, or disclosed to, the Australian Federal Police.
(2) Where:
(a) an act done or a practice engaged
in by a person, in relation to a record, is to be treated, under subsection (1),
as having been done or engaged in by an agency; and
(b) that agency does not hold that
record;
that act or practice shall be treated as the act or the
practice of the agency that holds that record.
(3) For the purposes of the application of
this Act in relation to an organisation that is a partnership:
(a) an act done or practice engaged in
by a partner is taken to have been done or engaged in by the organisation; and
(b) a communication (including a
complaint, notice, request or disclosure of information) made to a partner is
taken to have been made to the organisation.
(4) For the purposes of the application of
this Act in relation to an organisation that is an unincorporated association:
(a) an act done or practice engaged in
by a member of the committee of management of the association is taken to have
been done or engaged in by the organisation; and
(b) a communication (including a
complaint, notice, request or disclosure of information) made to a member of
the committee of management of the association is taken to have been made to
the organisation.
(5) For the purposes of the application of
this Act in relation to an organisation that is a trust:
(a) an act done or practice engaged in
by a trustee is taken to have been done or engaged in by the organisation; and
(b) a communication (including a
complaint, notice or request or disclosure of information) made to a trustee is
taken to have been made to the organisation.
10
Agencies that are taken to hold a record
(4) Where:
(a) a record of personal information
(not being a record relating to the administration of the National Archives of
Australia) is in the care (within the meaning of the Archives Act 1983)
of the National Archives of Australia; or
(b) a record of personal information
(not being a record relating to the administration of the Australian War
Memorial) is in the custody of the Australian War Memorial;
the agency by or on behalf of which the record was placed
in that care or custody or, if that agency no longer exists, the agency to whose
functions the contents of the record are most closely related, shall be
regarded, for the purposes of this Act, to be the agency that holds that
record.
(5) Where a record of personal information
was placed by or on behalf of an agency in the memorial collection within the
meaning of the Australian War Memorial Act 1980, that agency or, if that
agency no longer exists, the agency to whose functions the contents of the
record are most closely related, shall be regarded, for the purposes of this
Act, to be the agency that holds that record.
11
File number recipients
(1) A person who is (whether lawfully or
unlawfully) in possession or control of a record that contains tax file number
information shall be regarded, for the purposes of this Act, as a file number
recipient.
(2) Subject to subsection (3), where a
record that contains tax file number information is in the possession or under
the control of a person:
(a) in the course of the person’s
employment in the service of or by a person or body other than an agency;
(b) in the course of the person’s
employment in the service of or by an agency other than the Australian Federal
Police; or
(c) as a member, staff member or
special member of the Australian Federal Police in the performance of his or
her duties as such a member, staff member or special member;
then, for the purposes of this Act, the file number
recipient in relation to that record shall be taken to be:
(d) if paragraph (a) applies—the
person’s employer;
(e) if paragraph (b) applies—the
agency first referred to in that paragraph; and
(f) if paragraph (c) applies—the
Australian Federal Police.
(3) Where a record that contains tax file
number information is in the possession or under the control of a person for
the purposes of the activities of, an unincorporated body, being a board,
council, committee, sub‑committee or other body established by or under a
Commonwealth enactment or a Norfolk Island enactment for the purpose of
assisting, or performing functions connected with, an agency, that agency shall
be treated, for the purposes of this Act, as the file number recipient in
relation to that record.
12A
Act not to apply in relation to State banking or insurance within that State
Where, but for this section, a provision
of this Act:
(a) would have a particular
application; and
(b) by virtue of having that
application, would be a law with respect to, or with respect to matters
including:
(i) State banking not
extending beyond the limits of the State concerned; or
(ii) State insurance not
extending beyond the limits of the State concerned;
the provision is not to have that application.
12B
Severability—additional effect of this Act
(1) Without limiting its effect apart from
this section, this Act has effect in relation to the following (the regulated
entities) as provided by this section:
(a) an agency;
(b) an organisation;
(c) a small business operator;
(d) a body politic.
Note: Subsection 27(4) applies in relation to
an investigation of an act or practice referred to in subsection 29(1) of
the Healthcare Identifiers Act 2010.
(2) This Act also has the effect it would
have if its operation in relation to regulated entities were expressly confined
to an operation to give effect to the following:
(a) the International Covenant on
Civil and Political Rights done at New York on 16 December 1966 ([1980]
ATS 23), and in particular Articles 17 and 24(1) of the Covenant;
(b) Article 16 of the Convention on
the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4).
Note: In 2012, the text of the Covenant and
Convention in the Australian Treaty Series was accessible through the
Australian Treaties Library on the AustLII website (www.austlii.edu.au).
(3) This Act also has the effect it would
have if its operation in relation to regulated entities were expressly confined
to acts or practices covered by section 5B (which deals with acts and
practices outside Australia and the external Territories).
(4) This Act also has the effect it would
have if its operation in relation to regulated entities were expressly confined
to regulated entities that are corporations.
(5) This Act also has the effect it would
have if its operation in relation to regulated entities were expressly confined
to acts or practices of regulated entities taking place in the course of, or in
relation to, trade or commerce:
(a) between Australia and places
outside Australia; or
(b) among the States; or
(c) within a Territory, between a
State and a Territory or between 2 Territories.
(5A) This Act also has the effect it would have
if its operation in relation to regulated entities were expressly confined to
acts or practices engaged in by regulated entities in the course of:
(a) banking (other than State banking
not extending beyond the limits of the State concerned); or
(b) insurance (other than State
insurance not extending beyond the limits of the State concerned).
(6) This Act also has the effect it would
have if its operation in relation to regulated entities were expressly confined
to acts or practices of regulated entities taking place using a postal,
telegraphic, telephonic or other like service within the meaning of paragraph 51(v)
of the Constitution.
(7) This Act also has the effect it would
have if its operation in relation to regulated entities were expressly confined
to acts or practices of regulated entities taking place in a Territory.
(8) This Act also has the effect it would
have if its operation in relation to regulated entities were expressly confined
to acts or practices of regulated entities taking place in a place acquired by
the Commonwealth for public purposes.
Part III—Information
privacy
Division 1—Interferences with privacy
13
Interferences with privacy
APP entities
(1) An act or practice of an APP entity is an
interference with the privacy of an individual if:
(a) the act or practice breaches an
Australian Privacy Principle in relation to personal information about the
individual; or
(b) the act or practice breaches a
registered APP code that binds the entity in relation to personal information
about the individual.
Credit reporting
(2) An act or practice of an entity is an
interference with the privacy of an individual if:
(a) the act or practice breaches a
provision of Part IIIA in relation to personal information about the
individual; or
(b) the act or practice breaches the
registered CR code in relation to personal information about the individual and
the code binds the entity.
Contracted service providers
(3) An act or practice of an organisation is
an interference with the privacy of an individual if:
(a) the act or practice relates to
personal information about the individual; and
(b) the organisation is a contracted
service provider for a Commonwealth contract (whether or not the organisation
is a party to the contract); and
(c) the act or practice does not
breach:
(i) an Australian Privacy
Principle; or
(ii) a registered APP code
that binds the organisation;
in relation to the personal
information because of a provision of the contract that is inconsistent with
the principle or code; and
(d) the act is done, or the practice
is engaged in, in a manner contrary to, or inconsistent with, that provision.
Note: See subsections 6A(2) and 6B(2) for when
an act or practice does not breach an Australian Privacy Principle or a
registered APP code.
Tax file numbers
(4) An act or practice is an interference
with the privacy of an individual if:
(a) it is an act or practice of a file
number recipient and the act or practice breaches a rule issued under section 17
in relation to tax file number information that relates to the individual; or
(b) the act or practice involves an
unauthorised requirement or request for disclosure of the tax file number of
the individual.
Other interferences with privacy
(5) An act or practice is an interference
with the privacy of an individual if the act or practice:
(a) constitutes a breach of Part 2
of the Data‑matching Program (Assistance and Tax) Act 1990 or the rules
issued under section 12 of that Act; or
(b) constitutes a breach of the rules
issued under section 135AA of the National Health Act 1953.
Note: Other Acts may provide that an act or practice
is an interference with the privacy of an individual. For example, see the Healthcare
Identifiers Act 2010, the Anti‑Money Laundering and Counter‑Terrorism
Financing Act 2006 and the Personal Property Securities Act 2009.
13B
Related bodies corporate
Acts or practices that are not interferences with
privacy
(1) Despite subsection 13(1), each of
the following acts or practices of an organisation that is a body corporate is
not an interference with the privacy of an individual:
(a) the collection of personal
information (other than sensitive information) about the individual by the body
corporate from a related body corporate;
(b) the disclosure of personal
information (other than sensitive information) about the individual by the body
corporate to a related body corporate.
Note: Subsection (1) lets related bodies
corporate share personal information. However, in using or holding the
information, they must comply with the Australian Privacy Principles and a
registered APP code that binds them. For example, there is an interference with
privacy if:
(a) a body corporate uses personal information it has
collected from a related body corporate; and
(b) the use breaches Australian Privacy Principle 6
(noting that the collecting body’s primary purpose of collection will be taken
to be the same as that of the related body).
(1A) However, paragraph (1)(a) does not
apply to the collection by a body corporate of personal information (other than
sensitive information) from:
(a) a related body corporate that is
not an organisation; or
(b) a related body corporate whose
disclosure of the information to the body corporate is an exempt act or exempt
practice for the purposes of paragraph 7(1)(ee); or
(c) a related body corporate whose
disclosure of the information to the body corporate is not an interference with
privacy because of section 13D.
Note: The effect of subsection (1A) is that a
body corporate’s failure to comply with the Australian Privacy Principles, or a
registered APP code that binds the body, in collecting personal information
about an individual from a related body corporate covered by that subsection is
an interference with the privacy of the individual.
Relationship with subsection 13(3)
(2) Subsection (1) does not prevent an
act or practice of an organisation from being an interference with the
privacy of an individual under subsection 13(3).
13C
Change in partnership because of change in partners
Acts or practices that are not interferences with
privacy
(1) If:
(a) an organisation (the new
partnership) that is a partnership forms at the same time as, or
immediately after, the dissolution of another partnership (the old
partnership); and
(b) at least one person who was a
partner in the old partnership is a partner in the new partnership; and
(c) the new partnership carries on a
business that is the same as, or similar to, a business carried on by the old
partnership; and
(d) the new partnership holds,
immediately after its formation, personal information about an individual that
the old partnership held immediately before its dissolution;
neither the disclosure (if any) by the old partnership,
nor the collection (if any) by the new partnership, of the information that was
necessary for the new partnership to hold the information immediately after its
formation constitutes an interference with the privacy of
the individual.
Note: Subsection (1) lets personal information
be passed on from an old to a new partnership. However, in using or holding the
information, they must comply with the Australian Privacy Principles and a
registered APP code that binds them. For example, the new partnership’s use of
personal information collected from the old partnership may constitute an
interference with privacy if it breaches Australian Privacy Principle 6.
Effect of subsection (1)
(2) Subsection (1) has effect despite
subsections 13(1) and (3).
13D
Overseas act required by foreign law
Acts or practices that are not interferences with
privacy
(1) An act or practice of an organisation
done or engaged in outside Australia and an external Territory is not an interference
with the privacy of an individual if the act or practice
is required by an applicable law of a foreign country.
Effect of subsection (1)
(2) Subsection (1) has effect despite
subsections 13(1) and (3).
13E
Effect of sections 13B, 13C and 13D
Sections 13B, 13C and 13D do not
prevent an act or practice of an organisation from being an interference
with the privacy of an individual under subsection 13(2), (4) or
(5).
13F
Act or practice not covered by section 13 is not an interference with privacy
An act or practice that is not covered
by section 13 is not an interference with the privacy of an
individual.
13G
Serious and repeated interferences with privacy
An entity contravenes this subsection
if:
(a) the entity does an act, or engages
in a practice, that is a serious interference with the privacy of an
individual; or
(b) the entity repeatedly does an act,
or engages in a practice, that is an interference with the privacy of one or
more individuals.
Civil penalty: 2,000 penalty units.
Division 2—Australian
Privacy Principles
14 Australian
Privacy Principles
(1) The Australian Privacy Principles
are set out in the clauses of Schedule 1.
(2) A reference in any Act to an Australian
Privacy Principle by a number is a reference to the Australian Privacy
Principle with that number.
15 APP
entities must comply with Australian Privacy Principles
An APP entity must not do an act, or
engage in a practice, that breaches an Australian Privacy Principle.
16
Personal, family or household affairs
Nothing in the Australian Privacy
Principles applies to:
(a) the collection, holding, use or
disclosure of personal information by an individual; or
(b) personal information held by an
individual;
only for the purposes of, or in connection with, his or
her personal, family or household affairs.
16A
Permitted general situations in relation to the collection, use or disclosure
of personal information
(1) A permitted general situation
exists in relation to the collection, use or disclosure by an APP entity of
personal information about an individual, or of a government related identifier
of an individual, if:
(a) the entity is an entity of a kind
specified in an item in column 1 of the table; and
(b) the item in column 2 of the table
applies to the information or identifier; and
(c) such conditions as are specified
in the item in column 3 of the table are satisfied.
|
Permitted general
situations
|
|
Item
|
Column 1
Kind of entity
|
Column 2
Item applies to
|
Column 3
Condition(s)
|
|
1
|
APP entity
|
(a) personal information; or
(b) a government related identifier.
|
(a) it is unreasonable or impracticable to obtain the
individual’s consent to the collection, use or disclosure; and
(b) the entity reasonably believes that the collection, use
or disclosure is necessary to lessen or prevent a serious threat to the life,
health or safety of any individual, or to public health or safety.
|
|
2
|
APP entity
|
(a) personal information; or
(b) a government related identifier.
|
(a) the entity has reason to suspect that unlawful activity,
or misconduct of a serious nature, that relates to the entity’s functions or
activities has been, is being or may be engaged in; and
(b) the entity reasonably believes that the collection, use
or disclosure is necessary in order for the entity to take appropriate action
in relation to the matter.
|
|
3
|
APP entity
|
Personal information
|
(a) the entity reasonably believes that the collection, use
or disclosure is reasonably necessary to assist any APP entity, body or
person to locate a person who has been reported as missing; and
(b) the collection, use or disclosure complies with the rules
made under subsection (2).
|
|
4
|
APP entity
|
Personal information
|
The collection, use or disclosure is reasonably necessary
for the establishment, exercise or defence of a legal or equitable claim.
|
|
5
|
APP entity
|
Personal information
|
The collection, use or disclosure is reasonably necessary
for the purposes of a confidential alternative dispute resolution process.
|
|
6
|
Agency
|
Personal information
|
The entity reasonably believes that the collection, use or
disclosure is necessary for the entity’s diplomatic or consular functions or
activities.
|
|
7
|
Defence Force
|
Personal information
|
The entity reasonably believes that the collection, use or
disclosure is necessary for any of the following occurring outside Australia
and the external Territories:
(a) war or warlike operations;
(b) peacekeeping or peace enforcement;
(c) civil aid, humanitarian assistance, medical or civil
emergency or disaster relief.
|
(2) The Commissioner may, by legislative
instrument, make rules relating to the collection, use or disclosure of
personal information that apply for the purposes of item 3 of the table in
subsection (1).
16B
Permitted health situations in relation to the collection, use or disclosure of
health information
Collection—provision of a health service
(1) A permitted health situation
exists in relation to the collection by an organisation of health information
about an individual if:
(a) the information is necessary to
provide a health service to the individual; and
(b) either:
(i) the collection is
required or authorised by or under an Australian law (other than this Act); or
(ii) the information is
collected in accordance with rules established by competent health or medical bodies
that deal with obligations of professional confidentiality which bind the
organisation.
Collection—research etc.
(2) A permitted health situation
exists in relation to the collection by an organisation of health information
about an individual if:
(a) the collection is necessary for
any of the following purposes:
(i) research relevant to
public health or public safety;
(ii) the compilation or
analysis of statistics relevant to public health or public safety;
(iii) the management,
funding or monitoring of a health service; and
(b) that purpose cannot be served by
the collection of information about the individual that is de‑identified
information; and
(c) it is impracticable for the
organisation to obtain the individual’s consent to the collection; and
(d) any of the following apply:
(i) the collection is
required by or under an Australian law (other than this Act);
(ii) the information is
collected in accordance with rules established by competent health or medical
bodies that deal with obligations of professional confidentiality which bind
the organisation;
(iii) the information is
collected in accordance with guidelines approved under section 95A for the
purposes of this subparagraph.
Use or disclosure—research etc.
(3) A permitted health situation
exists in relation to the use or disclosure by an organisation of health
information about an individual if:
(a) the use or disclosure is necessary
for research, or the compilation or analysis of statistics, relevant to public
health or public safety; and
(b) it is impracticable for the
organisation to obtain the individual’s consent to the use or disclosure; and
(c) the use or disclosure is conducted
in accordance with guidelines approved under section 95A for the purposes
of this paragraph; and
(d) in the case of disclosure—the
organisation reasonably believes that the recipient of the information will not
disclose the information, or personal information derived from that
information.
Use or disclosure—genetic information
(4) A permitted health situation
exists in relation to the use or disclosure by an organisation of genetic
information about an individual (the first individual) if:
(a) the organisation has obtained the
information in the course of providing a health service to the first
individual; and
(b) the organisation reasonably
believes that the use or disclosure is necessary to lessen or prevent a serious
threat to the life, health or safety of another individual who is a genetic
relative of the first individual; and
(c) the use or disclosure is conducted
in accordance with guidelines approved under section 95AA; and
(d) in the case of disclosure—the
recipient of the information is a genetic relative of the first individual.
Disclosure—responsible person for an individual
(5) A permitted health situation
exists in relation to the disclosure by an organisation of health information
about an individual if:
(a) the organisation provides a health
service to the individual; and
(b) the recipient of the information
is a responsible person for the individual; and
(c) the individual:
(i) is physically or
legally incapable of giving consent to the disclosure; or
(ii) physically cannot
communicate consent to the disclosure; and
(d) another individual (the carer)
providing the health service for the organisation is satisfied that either:
(i) the disclosure is
necessary to provide appropriate care or treatment of the individual; or
(ii) the disclosure is made
for compassionate reasons; and
(e) the disclosure is not contrary to
any wish:
(i) expressed by the
individual before the individual became unable to give or communicate consent;
and
(ii) of which the carer is
aware, or of which the carer could reasonably be expected to be aware; and
(f) the disclosure is limited to the
extent reasonable and necessary for a purpose mentioned in paragraph (d).
16C
Acts and practices of overseas recipients of personal information
(1) This section applies if:
(a) an APP entity discloses personal
information about an individual to an overseas recipient; and
(b) Australian Privacy Principle 8.1
applies to the disclosure of the information; and
(c) the Australian Privacy Principles
do not apply, under this Act, to an act done, or a practice engaged in, by the
overseas recipient in relation to the information; and
(d) the overseas recipient does an
act, or engages in a practice, in relation to the information that would be a
breach of the Australian Privacy Principles (other than Australian Privacy
Principle 1) if those Australian Privacy Principles so applied to that act
or practice.
(2) The act done, or the practice engaged in,
by the overseas recipient is taken, for the purposes of this Act:
(a) to have been done, or engaged in,
by the APP entity; and
(b) to be a breach of those Australian
Privacy Principles by the APP entity.
Division 4—Tax file number
information
17
Rules relating to tax file number information
The Commissioner must, by legislative
instrument, issue rules concerning the collection, storage, use and security of
tax file number information.
18
File number recipients to comply with rules
A file number recipient shall not do an
act, or engage in a practice, that breaches a rule issued under section 17.
Part IIIA—Credit
reporting
Division 1—Introduction
19
Guide to this Part
In general, this Part deals with the
privacy of information relating to credit reporting.
Divisions 2 and 3 contain rules
that apply to credit reporting bodies and credit providers in relation to their
handling of information relating to credit reporting.
Division 4 contains rules that
apply to affected information recipients in relation to their handling of their
regulated information.
Division 5 deals with complaints
to credit reporting bodies or credit providers about acts or practices that may
be a breach of certain provisions of this Part or the registered CR code.
Division 6 deals with entities
that obtain credit reporting information or credit eligibility information by
false pretence, or when they are not authorised to do so under this Part.
Division 7 provides for
compensation orders, and other orders, to be made by the Federal Court or Federal
Circuit Court.
Division 2—Credit reporting
bodies
Subdivision A—Introduction and application of this Division etc.
20
Guide to this Division
This Division sets out rules that
apply to credit reporting bodies in relation to their handling of the
following:
(a) credit
reporting information;
(b) CP derived
information;
(c) credit
reporting information that is de‑identified;
(d) a pre‑screening
assessment.
The rules apply in relation to that
kind of information or assessment instead of the Australian Privacy Principles.
20A
Application of this Division and the Australian Privacy Principles to credit
reporting bodies
(1) This Division applies to a credit
reporting body in relation to the following:
(a) credit reporting information;
(b) CP derived information;
(c) credit reporting information that
is de‑identified;
(d) a pre‑screening assessment.
(2) The Australian Privacy Principles do not
apply to a credit reporting body in relation to personal information that is:
(a) credit reporting information; or
(b) CP derived information; or
(c) a pre‑screening assessment.
Note: The Australian Privacy Principles apply to the
credit reporting body in relation to other kinds of personal information.
Subdivision B—Consideration of information privacy
20B
Open and transparent management of credit reporting information
(1) The object of this section is to ensure
that credit reporting bodies manage credit reporting information in an open and
transparent way.
Compliance with this Division etc.
(2) A credit reporting body must take such
steps as are reasonable in the circumstances to implement practices, procedures
and systems relating to the credit reporting business of the body that:
(a) will ensure that the body complies
with this Division and the registered CR code; and
(b) will enable the body to deal with
inquiries or complaints from individuals about the body’s compliance with this
Division or the registered CR code.
Policy about the management of credit reporting
information
(3) A credit reporting body must have a
clearly expressed and up‑to‑date policy about the management of credit
reporting information by the body.
(4) Without limiting subsection (3), the
policy of the credit reporting body must contain the following information:
(a) the kinds of credit information
that the body collects and how the body collects that information;
(b) the kinds of credit reporting
information that the body holds and how the body holds that information;
(c) the kinds of personal information
that the body usually derives from credit information that the body holds;
(d) the purposes for which the body
collects, holds, uses and discloses credit reporting information;
(e) information about the effect of
section 20G (which deals with direct marketing) and how the individual may
make a request under subsection (5) of that section;
(f) how an individual may access
credit reporting information about the individual that is held by the body and
seek the correction of such information;
(g) information about the effect of
section 20T (which deals with individuals requesting the correction of
credit information etc.);
(h) how an individual may complain about
a failure of the body to comply with this Division or the registered CR code
and how the body will deal with such a complaint.
Availability of policy etc.
(5) A credit reporting body must take such
steps as are reasonable in the circumstances to make the policy available:
(a) free of charge; and
(b) in such form as is appropriate.
Note: A credit reporting body will usually make the
policy available on the body’s website.
(6) If a person or body requests a copy, in a
particular form, of the policy of a credit reporting body, the credit reporting
body must take such steps as are reasonable in the circumstances to give the
person or body a copy in that form.
Subdivision C—Collection of credit information
20C
Collection of solicited credit information
Prohibition on collection
(1) A credit reporting body must not collect
credit information about an individual.
Civil penalty: 2,000 penalty units.
Exceptions
(2) Subsection (1) does not apply if the
collection of the credit information is required or authorised by or under an
Australian law or a court/tribunal order.
(3) Subsection (1) does not apply if:
(a) the credit reporting body collects
the credit information about the individual from a credit provider who is
permitted under section 21D to disclose the information to the body; and
(b) the body collects the information
in the course of carrying on a credit reporting business; and
(c) if the information is
identification information about the individual—the body also collects from the
provider, or already holds, credit information of another kind about the
individual.
(4) Subsection (1) does not apply if:
(a) the credit reporting body:
(i) collects the credit
information about the individual from an entity (other than a credit provider)
in the course of carrying on a credit reporting business; and
(ii) knows, or believes on
reasonable grounds, that the individual is at least 18 years old; and
(b) the information does not relate to
an act, omission, matter or thing that occurred or existed before the
individual turned 18; and
(c) if the information relates to
consumer credit or commercial credit—the credit is or has been provided, or
applied for, in Australia; and
(d) if the information is
identification information about the individual—the body also collects from the
entity, or already holds, credit information of another kind about the
individual; and
(e) if the information is repayment
history information about the individual—the body collects the information from
another credit reporting body that has an Australian link.
(5) Paragraph (4)(b) does not apply to
identification information about the individual.
(6) Despite paragraph (4)(b), consumer
credit liability information about the individual may relate to consumer credit
that was entered into on a day before the individual turned 18, so long as the
consumer credit was not terminated, or did not otherwise cease to be in force,
on a day before the individual turned 18.
Means of collection
(7) A credit reporting body must collect
credit information only by lawful and fair means.
Solicited credit information
(8) This section applies to the collection of
credit information that is solicited by a credit reporting body.
20D
Dealing with unsolicited credit information
(1) If:
(a) a credit reporting body receives
credit information about an individual; and
(b) the body did not solicit the
information;
the body must, within a reasonable period after receiving
the information, determine whether or not the body could have collected the
information under section 20C if the body had solicited the information.
(2) The credit reporting body may use or
disclose the credit information for the purposes of making the determination
under subsection (1).
(3) If the credit reporting body determines
that it could have collected the credit information, sections 20E to 20ZA
apply in relation to the information as if the body had collected the
information under section 20C.
(4) If the credit reporting body determines
that it could not have collected the credit information, the body must, as soon
as practicable, destroy the information.
Civil penalty: 1,000 penalty units.
(5) Subsection (4) does not apply if the
credit reporting body is required by or under an Australian law, or a
court/tribunal order, to retain the credit information.
Subdivision D—Dealing with credit reporting information etc.
20E
Use or disclosure of credit reporting information
Prohibition on use or disclosure
(1) If a credit reporting body holds credit
reporting information about an individual, the body must not use or disclose
the information.
Civil penalty: 2,000 penalty units.
Permitted uses
(2) Subsection (1) does not apply to the
use of credit reporting information about the individual if:
(a) the credit reporting body uses the
information in the course of carrying on the body’s credit reporting business;
or
(b) the use is required or authorised
by or under an Australian law or a court/tribunal order; or
(c) the use is a use prescribed by the
regulations.
Permitted disclosures
(3) Subsection (1) does
not apply to the disclosure of credit reporting information about the
individual if:
(a) the disclosure is a permitted CRB
disclosure in relation to the individual; or
(b) the disclosure is to another
credit reporting body that has an Australian link; or
(c) both of the following apply:
(i) the disclosure is for
the purposes of a recognised external dispute resolution scheme;
(ii) a credit reporting
body or credit provider is a member of the scheme; or
(d) both of the following apply:
(i) the disclosure is to
an enforcement body;
(ii) the credit reporting
body is satisfied that the body, or another enforcement body, believes on
reasonable grounds that the individual has committed a serious credit
infringement; or
(e) the disclosure is required or
authorised by or under an Australian law or a court/tribunal order; or
(f) the disclosure is a disclosure
prescribed by the regulations.
(4) However, if the credit reporting
information is, or was derived from, repayment history information about the
individual, the credit reporting body must not disclose the information under paragraph (3)(a)
or (f) unless the recipient of the information is:
(a) a credit provider who is a
licensee or is prescribed by the regulations; or
(b) a mortgage insurer.
Civil penalty: 2,000 penalty units.
(5) If a credit reporting body discloses
credit reporting information under this section, the body must make a written
note of that disclosure.
Civil penalty: 500 penalty units.
Note: Other Acts may provide that the note must not
be made (see for example the Australian Crime Commission Act 2002 and
the Law Enforcement Integrity Commissioner Act 2006).
No use or disclosure for the purposes of direct
marketing
(6) This section does not apply to the use or
disclosure of credit reporting information for the purposes of direct
marketing.
Note: Section 20G deals with the use or
disclosure of credit reporting information for the purposes of direct
marketing.
20F
Permitted CRB disclosures in relation to individuals
(1) A disclosure by a credit reporting body
of credit reporting information about an individual is a permitted CRB
disclosure in relation to the individual if:
(a) the disclosure is to an entity
that is specified in an item of the table and that has an Australian link; and
(b) such conditions as are specified
for the item are satisfied.
|
Permitted CRB
disclosures
|
|
Item
|
If the disclosure is to
...
|
the condition or
conditions are ...
|
|
1
|
a credit provider
|
the provider requests the information for a consumer
credit related purpose of the provider in relation to the individual.
|
|
2
|
a credit provider
|
(a) the provider requests the information for a commercial
credit related purpose of the provider in relation to a person; and
(b) the individual expressly consents to the disclosure of
the information to the provider for that purpose.
|
|
3
|
a credit provider
|
(a) the provider requests the information for a credit
guarantee purpose of the provider in relation to the individual; and
(b) the individual expressly consents, in writing, to the
disclosure of the information to the provider for that purpose.
|
|
4
|
a credit provider
|
the credit reporting body is satisfied that the provider,
or another credit provider, believes on reasonable grounds that the
individual has committed a serious credit infringement.
|
|
5
|
a credit provider
|
(a) the credit reporting body holds consumer credit liability
information that relates to consumer credit provided by the provider to the
individual; and
(b) the consumer credit has not been terminated, or has not
otherwise ceased to be in force.
|
|
6
|
a credit provider under subsection 6J(1)
|
the provider requests the information for a securitisation
related purpose of the provider in relation to the individual.
|
|
7
|
a mortgage insurer
|
the insurer requests the information for a mortgage
insurance purpose of the insurer in relation to the individual.
|
|
8
|
a trade insurer
|
(a) the insurer requests the information for a trade
insurance purpose of the insurer in relation to the individual; and
(b) the individual expressly consents, in writing, to the
disclosure of the information to the insurer for that purpose.
|
(2) The consent of the individual under paragraph (b)
of item 2 of the table in subsection (1) must be given in writing
unless:
(a) the credit provider referred to in
that item requests the information for the purpose of assessing an application
for commercial credit made by a person to the provider; and
(b) the application has not been made
in writing.
20G
Use or disclosure of credit reporting information for the purposes of direct
marketing
Prohibition on direct marketing
(1) If a credit reporting body holds credit
reporting information about an individual, the body must not use or disclose
the information for the purposes of direct marketing.
Civil penalty: 2,000 penalty units.
Permitted use for pre‑screening
(2) Subsection (1) does not apply to the
use by the credit reporting body of credit information about the individual for
the purposes of direct marketing by, or on behalf of, a credit provider if:
(a) the provider has an Australian
link and is a licensee; and
(b) the direct marketing is about
consumer credit that the provider provides in Australia; and
(c) the information is not consumer
credit liability information, or repayment history information, about the
individual; and
(d) the body uses the information to
assess whether or not the individual is eligible to receive the direct
marketing communications of the credit provider; and
(e) the individual has not made a
request under subsection (5); and
(f) the body complies with any
requirements that are set out in the registered CR code.
(3) In assessing under paragraph (2)(d)
whether or not the individual is eligible to receive the direct marketing
communications of the credit provider, the credit reporting body must have
regard to the eligibility requirements nominated by the provider.
(4) An assessment under paragraph (2)(d)
is not credit reporting information about the individual.
Request not to use information for pre‑screening
(5) An individual may request a credit
reporting body that holds credit information about the individual not to use
the information under subsection (2).
(6) If the individual makes a request under subsection (5),
the credit reporting body must not charge the individual for the making of the
request or to give effect to the request.
Written note of use
(7) If a credit reporting body uses credit
information under subsection (2), the body must make a written note of
that use.
Civil penalty: 500 penalty units.
20H
Use or disclosure of pre‑screening assessments
Use or disclosure by credit reporting bodies
(1) If a credit reporting body makes a pre‑screening
assessment in relation to direct marketing by, or on behalf of, a credit
provider, the body must not use or disclose the assessment.
Civil penalty: 2,000 penalty units.
(2) Subsection (1) does not apply if:
(a) the credit reporting body
discloses the pre‑screening assessment for the purposes of the direct marketing
by, or on behalf of, the credit provider; and
(b) the recipient of the assessment is
an entity (other than the provider) that has an Australian link.
(3) If the credit reporting body discloses
the pre‑screening assessment under subsection (2), the body must make a
written note of that disclosure.
Civil penalty: 500 penalty units.
Use or disclosure by recipients
(4) If the credit reporting body discloses
the pre‑screening assessment under subsection (2), the recipient must not
use or disclose the assessment.
Civil penalty: 1,000 penalty units.
(5) Subsection (4) does not apply if the
recipient uses the pre‑screening assessment for the purposes of the direct
marketing by, or on behalf of, the credit provider.
(6) If the recipient uses the pre‑screening
assessment under subsection (5), the recipient must make a written note of
that use.
Civil penalty: 500 penalty units.
Interaction with the Australian Privacy Principles
(7) If the recipient is an APP entity,
Australian Privacy Principles 6, 7 and 8 do not apply to the recipient in
relation to a pre‑screening assessment.
20J
Destruction of pre‑screening assessment
(1) If an entity has possession or control of
a pre‑screening assessment, the entity must destroy the assessment if:
(a) the entity no longer needs the
assessment for any purpose for which it may be used or disclosed under section 20H;
and
(b) the entity is not required by or
under an Australian law, or a court/tribunal order, to retain the assessment.
Civil penalty: 1,000 penalty units.
(2) If the entity is an APP entity but not a
credit reporting body, Australian Privacy Principle 11.2 does not apply to
the entity in relation to the pre‑screening assessment.
20K No
use or disclosure of credit reporting information during a ban period
(1) If:
(a) a credit reporting body holds
credit reporting information about an individual; and
(b) the individual believes on
reasonable grounds that the individual has been, or is likely to be, a victim
of fraud (including identity fraud); and
(c) the individual requests the body
not to use or disclose the information under this Division;
then, despite any other provision of this Division, the
body must not use or disclose the information during the ban period for the
information.
Civil penalty: 2,000 penalty units.
(2) Subsection (1) does not apply if:
(a) the individual expressly consents,
in writing, to the use or disclosure of the credit reporting information under
this Division; or
(b) the use or disclosure of the
credit reporting information is required by or under an Australian law or a
court/tribunal order.
Ban period
(3) The ban period for credit
reporting information about an individual is the period that:
(a) starts when the individual makes a
request under paragraph (1)(c); and
(b) ends:
(i) 21 days after the day
on which the request is made; or
(ii) if the period is
extended under subsection (4)—on the day after the extended period ends.
(4) If:
(a) there is a ban period for credit
reporting information about an individual that is held by a credit reporting
body; and
(b) before the ban period ends, the
individual requests the body to extend that period; and
(c) the body believes on reasonable
grounds that the individual has been, or is likely to be, a victim of fraud
(including identity fraud);
the body must:
(d) extend the ban period by such
period as the body considers is reasonable in the circumstances; and
(e) give the individual written
notification of the extension.
Civil penalty: 1,000 penalty units.
(5) A ban period for credit reporting
information may be extended more than once under subsection (4).
No charge for request etc.
(6) If an individual makes a request under paragraph (1)(c)
or (4)(b), a credit reporting body must not charge the individual for the
making of the request or to give effect to the request.
20L
Adoption of government related identifiers
(1) If:
(a) a credit reporting body holds
credit reporting information about an individual; and
(b) the information is a government
related identifier of the individual;
the body must not adopt the government related identifier
as its own identifier of the individual.
Civil penalty: 2,000 penalty units.
(2) Subsection (1) does not apply if the
adoption of the government related identifier is required or authorised by or
under an Australian law or a court/tribunal order.
20M
Use or disclosure of credit reporting information that is de‑identified
Use or disclosure
(1) If:
(a) a credit reporting body holds
credit reporting information; and
(b) the information (the de‑identified
information) is de‑identified;
the body must not use or disclose the de‑identified
information.
(2) Subsection (1) does not apply to the
use or disclosure of the de‑identified information if:
(a) the use or disclosure is for the
purposes of conducting research in relation to credit; and
(b) the credit reporting body complies
with the rules made under subsection (3).
Commissioner may make rules
(3) The Commissioner may, by legislative
instrument, make rules relating to the use or disclosure by a credit reporting
body of de‑identified information for the purposes of conducting research in
relation to credit.
(4) Without limiting subsection (3), the
rules may relate to the following matters:
(a) the kinds of de‑identified
information that may or may not be used or disclosed for the purposes of
conducting the research;
(b) whether or not the research is
research in relation to credit;
(c) the purposes of conducting the
research;
(d) consultation about the research;
(e) how the research is conducted.
Subdivision E—Integrity of credit reporting information
20N
Quality of credit reporting information
(1) A credit reporting body must take such
steps as are reasonable in the circumstances to ensure that the credit
information the body collects is accurate, up‑to‑date and complete.
(2) A credit reporting body must take such
steps as are reasonable in the circumstances to ensure that the credit
reporting information the body uses or discloses is, having regard to the
purpose of the use or disclosure, accurate, up‑to‑date, complete and relevant.
(3) Without limiting subsections (1) and
(2), a credit reporting body must:
(a) enter into agreements with credit
providers that require the providers to ensure that credit information that they
disclose to the body under section 21D is accurate, up‑to‑date and
complete; and
(b) ensure that regular audits are
conducted by an independent person to determine whether those agreements are
being complied with; and
(c) identify and deal with suspected
breaches of those agreements.
20P
False or misleading credit reporting information
Offence
(1) A credit reporting body commits an
offence if:
(a) the body uses or discloses credit
reporting information under this Division (other than subsections 20D(2)
and 20T(4)); and
(b) the information is false or
misleading in a material particular.
Penalty: 200 penalty units.
Civil penalty
(2) A credit reporting body must not use or
disclose credit reporting information under this Division (other than subsections 20D(2)
and 20T(4)) if the information is false or misleading in a material particular.
Civil penalty: 2,000 penalty units.
20Q
Security of credit reporting information
(1) If a credit reporting body holds credit
reporting information, the body must take such steps as are reasonable in the
circumstances to protect the information:
(a) from misuse, interference and
loss; and
(b) from unauthorised access,
modification or disclosure.
(2) Without limiting subsection (1), a
credit reporting body must:
(a) enter into agreements with credit
providers that require the providers to protect credit reporting information
that is disclosed to them under this Division:
(i) from misuse,
interference and loss; and
(ii) from unauthorised
access, modification or disclosure; and
(b) ensure that regular audits are
conducted by an independent person to determine whether those agreements are
being complied with; and
(c) identify and deal with suspected
breaches of those agreements.
Subdivision F—Access to, and correction of, information
20R
Access to credit reporting information
Access
(1) If a credit reporting body holds credit
reporting information about an individual, the body must, on request by an
access seeker in relation to the information, give the access seeker access to
the information.
Exceptions to access
(2) Despite subsection (1), the credit
reporting body is not required to give the access seeker access to the credit
reporting information to the extent that:
(a) giving access would be unlawful;
or
(b) denying access is required or
authorised by or under an Australian law or a court/tribunal order; or
(c) giving access would be likely to
prejudice one or more enforcement related activities conducted by, or on behalf
of, an enforcement body.
Dealing with requests for access
(3) The credit reporting body must respond to
the request within a reasonable period, but not longer than 10 days, after the
request is made.
Means of access
(4) If the credit reporting body gives access
to the credit reporting information, the access must be given in the manner set
out in the registered CR code.
Access charges
(5) If a request under subsection (1) in
relation to the individual has not been made to the credit reporting body in
the previous 12 months, the body must not charge the access seeker for the
making of the request or for giving access to the information.
(6) If subsection (5) does not apply,
any charge by the credit reporting body for giving access to the information
must not be excessive and must not apply to the making of the request.
Refusal to give access
(7) If the credit reporting body refuses to
give access to the information because of subsection (2), the body must
give the access seeker a written notice that:
(a) sets out the reasons for the refusal
except to the extent that, having regard to the grounds for the refusal, it
would be unreasonable to do so; and
(b) states that, if the access seeker
is not satisfied with the response to the request, the access seeker may:
(i) access a recognised
external dispute resolution scheme of which the body is a member; or
(ii) make a complaint to
the Commissioner under Part V.
20S
Correction of credit reporting information
(1) If:
(a) a credit reporting body holds
credit reporting information about an individual; and
(b) the body is satisfied that, having
regard to a purpose for which the information is held by the body, the
information is inaccurate, out‑of‑date, incomplete, irrelevant or misleading;
the body must take such steps (if any) as are reasonable
in the circumstances to correct the information to ensure that, having regard
to the purpose for which it is held, the information is accurate, up‑to‑date,
complete, relevant and not misleading.
(2) If:
(a) the credit reporting body corrects
credit reporting information under subsection (1); and
(b) the body has previously disclosed
the information under this Division (other than subsections 20D(2) and
20T(4));
the body must, within a reasonable period, give each
recipient of the information written notice of the correction.
(3) Subsection (2) does not apply if:
(a) it is impracticable for the credit
reporting body to give the notice under that subsection; or
(b) the credit reporting body is
required by or under an Australian law, or a court/tribunal order, not to give
the notice under that subsection.
20T
Individual may request the correction of credit information etc.
Request
(1) An individual may request a credit
reporting body to correct personal information about the individual if:
(a) the personal information is:
(i) credit information
about the individual; or
(ii) CRB derived
information about the individual; or
(iii) CP derived information
about the individual; and
(b) the body holds at least one kind
of the personal information referred to in paragraph (a).
Correction
(2) If the credit reporting body is satisfied
that the personal information is inaccurate, out‑of‑date, incomplete,
irrelevant or misleading, the body must take such steps (if any) as are
reasonable in the circumstances to correct the information within:
(a) the period of 30 days that starts
on the day on which the request is made; or
(b) such longer period as the
individual has agreed to in writing.
Consultation
(3) If the credit reporting body considers
that the body cannot be satisfied of the matter referred to in subsection (2)
in relation to the personal information without consulting either or both of
the following (the interested party):
(a) another credit reporting body that
holds or held the information and that has an Australian link;
(b) a credit provider that holds or
held the information and that has an Australian link;
the body must consult that interested party, or those
interested parties, about the individual’s request.
(4) The use or disclosure of personal
information about the individual for the purposes of the consultation is taken,
for the purposes of this Act, to be a use or disclosure that is authorised by
this subsection.
No charge
(5) The credit reporting body must not charge
the individual for the making of the request or for correcting the information.
20U
Notice of correction etc. must be given
(1) This section applies if an individual
requests a credit reporting body to correct personal information under
subsection 20T(1).
Notice of correction etc.
(2) If the credit reporting body corrects the
personal information under subsection 20T(2), the body must, within a
reasonable period:
(a) give the individual written notice
of the correction; and
(b) if the body consulted an
interested party under subsection 20T(3) about the individual’s
request—give the party written notice of the correction; and
(c) if the correction relates to
information that the body has previously disclosed under this Division (other
than subsections 20D(2) and 20T(4))—give each recipient of the information
written notice of the correction.
(3) If the credit reporting body does not
correct the personal information under subsection 20T(2), the body must,
within a reasonable period, give the individual written notice that:
(a) states that the correction has not
been made; and
(b) sets out the body’s reasons for
not correcting the information (including evidence substantiating the
correctness of the information); and
(c) states that, if the individual is
not satisfied with the response to the request, the individual may:
(i) access a recognised
external dispute resolution scheme of which the body is a member; or
(ii) make a complaint to
the Commissioner under Part V.
Exceptions
(4) Paragraph (2)(c) does not apply if
it is impracticable for the credit reporting body to give the notice under that
paragraph.
(5) Subsection (2) or (3) does not apply
if the credit reporting body is required by or under an Australian law, or a
court/tribunal order, not to give the notice under that subsection.
Subdivision G—Dealing with credit reporting information after the
retention period ends etc.
20V
Destruction etc. of credit reporting information after the retention period
ends
(1) This section applies if:
(a) a credit reporting body holds
credit information about an individual; and
(b) the retention period for the
information ends.
Note: There is no retention period for
identification information or credit information of a kind referred to in
paragraph 6N(k).
Destruction etc. of credit information
(2) The credit reporting body must destroy
the credit information, or ensure that the information is de‑identified, within
1 month after the retention period for the information ends.
Civil penalty: 1,000 penalty units.
(3) Despite subsection (2), the credit
reporting body must neither destroy the credit information nor ensure that the
information is de‑identified, if immediately before the retention period ends:
(a) there is a pending correction
request in relation to the information; or
(b) there is a pending dispute in
relation to the information.
Civil penalty: 500 penalty units.
(4) Subsection (2) does not apply if the
credit reporting body is required by or under an Australian law, or a
court/tribunal order, to retain the credit information.
Destruction etc. of CRB derived information
(5) The credit reporting body must destroy
any CRB derived information about the individual that was derived from the
credit information, or ensure that the CRB derived information is de‑identified:
(a) if:
(i) the CRB derived
information was derived from 2 or more kinds of credit information; and
(ii) the body is required
to do a thing referred to in subsection (2) to one of those kinds of credit
information;
at the same time that the body
does that thing to that credit information; or
(b) otherwise—at the same time that
the body is required to do a thing referred to in subsection (2) to the
credit information from which the CRB derived information was derived.
Civil penalty: 1,000 penalty units.
(6) Despite subsection (5), the credit
reporting body must neither destroy the CRB derived information nor ensure that
the information is de‑identified, if immediately before the retention period
ends:
(a) there is a pending correction
request in relation to the information; or
(b) there is a pending dispute in
relation to the information.
Civil penalty: 500 penalty units.
(7) Subsection (5) does not apply if the
credit reporting body is required by or under an Australian law, or a
court/tribunal order, to retain the CRB derived information.
20W
Retention period for credit information—general
The following table sets out the retention
period for credit information:
(a) that is information of a kind
referred to in an item of the table; and
(b) that is held by a credit reporting
body.
|
Retention period
|
|
Item
|
If the credit
information is ...
|
the retention period
for the information is ...
|
|
1
|
consumer credit liability information
|
the period of 2 years that starts on the day on which the
consumer credit to which the information relates is terminated or otherwise
ceases to be in force.
|
|
2
|
repayment history information
|
the period of 2 years that starts on the day on which the
monthly payment to which the information relates is due and payable.
|
|
3
|
information of a kind referred to in paragraph 6N(d)
or (e)
|
the period of 5 years that starts on the day on which the
information request to which the information relates is made.
|
|
4
|
default information
|
the period of 5 years that starts on the day on which the
credit reporting body collects the information.
|
|
5
|
payment information
|
the period of 5 years that starts on the day on which the
credit reporting body collects the default information to which the payment
information relates.
|
|
6
|
new arrangement information within the meaning of
subsection 6S(1)
|
the period of 2 years that starts on the day on which the
credit reporting body collects the default information referred to in that
subsection.
|
|
7
|
new arrangement information within the meaning of
subsection 6S(2)
|
the period of 2 years that starts on the day on which the
credit reporting body collects the information about the opinion referred to
in that subsection.
|
|
8
|
court proceedings information
|
the period of 5 years that starts on the day on which the
judgement to which the information relates is made or given.
|
|
9
|
information of a kind referred to in paragraph 6N(l)
|
the period of 7 years that starts on the day on which the
credit reporting body collects the information.
|
20X
Retention period for credit information—personal insolvency information
(1) The following table has effect:
|
Item
|
If personal insolvency
information relates to ...
|
the retention period
for the information is whichever of the following periods ends later ...
|
|
1
|
a bankruptcy of an individual
|
(a) the period of 5 years that starts on the day on which the
individual becomes a bankrupt;
(b) the period of 2 years that starts on the day the bankruptcy
ends.
|
|
2
|
a personal insolvency agreement to which item 3 of
this table does not apply
|
(a) the period of 5 years that starts on the day on which the
agreement is executed;
(b) the period of 2 years that starts on the day the
agreement is terminated or set aside under the Bankruptcy Act.
|
|
3
|
a personal insolvency agreement in relation to which a
certificate has been signed under section 232 of the Bankruptcy Act
|
(a) the period of 5 years that starts on the day on which the
agreement is executed;
(b) the period that ends on the day on which the certificate
is signed.
|
|
4
|
a debt agreement to which item 5 of this table does
not apply
|
(a) the period of 5 years that starts on the day on which the
agreement is made;
(b) the period of 2 years that starts on the day:
(i) the agreement is terminated under the Bankruptcy Act;
or
(ii) an order declaring that all the agreement is void is
made under that Act.
|
|
5
|
a debt agreement that ends under section 185N of the
Bankruptcy Act
|
(a) the period of 5 years that starts on the day on which the
agreement is made;
(b) the period that ends on the day on which the agreement
ends.
|
Debt agreement proposals
(2) If personal insolvency information
relates to a debt agreement proposal, the retention period for
the information is the period that ends on the day on which:
(a) the proposal is withdrawn; or
(b) the proposal is not accepted under
section 185EC of the Bankruptcy Act; or
(c) the acceptance of the proposal for
processing is cancelled under section 185ED of that Act; or
(d) the proposal lapses under section 185G
of that Act.
Control of property
(3) If personal insolvency information
relates to a direction given, or an order made, under section 50 of the
Bankruptcy Act, the retention period for the information is the
period that ends on the day on which the control of the property to which the
direction or order relates ends.
Note: See subsection 50(1B) of the Bankruptcy
Act for when the control of the property ends.
(4) If the personal insolvency information
relates to an authority signed under section 188 of the Bankruptcy Act,
the retention period for the information is the period that ends
on the day on which the property to which the authority relates is no longer
subject to control under Division 2 of Part X of that Act.
Interpretation
(5) An expression used in this section that
is also used in the Bankruptcy Act has the same meaning in this section as it
has in that Act.
20Y
Destruction of credit reporting information in cases of fraud
(1) This section applies if:
(a) a credit reporting body holds
credit reporting information about an individual; and
(b) the information relates to
consumer credit that has been provided by a credit provider to the individual,
or a person purporting to be the individual; and
(c) the body is satisfied that:
(i) the individual has
been a victim of fraud (including identity fraud); and
(ii) the consumer credit
was provided as a result of that fraud.
Destruction of credit reporting information
(2) The credit reporting body must:
(a) destroy the credit reporting
information; and
(b) within a reasonable period after
the information is destroyed:
(i) give the individual a
written notice that states that the information has been destroyed and sets out
the effect of subsection (4); and
(ii) give the credit
provider a written notice that states that the information has been destroyed.
Civil penalty: 1,000 penalty units.
(3) Subsection (2) does not apply if the
credit reporting body is required by or under an Australian law, or a
court/tribunal order, to retain the credit reporting information.
Notification of destruction to third parties
(4) If:
(a) a credit reporting body destroys
credit reporting information about an individual under subsection (2); and
(b) the body has previously disclosed
the information to one or more recipients under Subdivision D of this Division;
the body must, within a reasonable period after the
destruction, notify those recipients of the destruction and the matters
referred to in paragraph (1)(c).
Civil penalty: 500 penalty units.
(5) Subsection (4) does not apply if the
credit reporting body is required by or under an Australian law, or a
court/tribunal order, not to give the notification.
20Z
Dealing with information if there is a pending correction request etc.
(1) This section applies if a credit
reporting body holds credit reporting information about an individual and
either:
(a) subsection 20V(3) applies in
relation to the information; or
(b) subsection 20V(6) applies in
relation to the information.
Notification of Commissioner
(2) The credit reporting body must, as soon
as practicable, notify in writing the Commissioner of the matter referred to in
paragraph (1)(a) or (b) of this section.
Civil penalty: 1,000 penalty units.
Use or disclosure
(3) The credit reporting body must not use or
disclose the information under Subdivision D of this Division.
Civil penalty: 2,000 penalty units.
(4) However, the credit reporting body may
use or disclose the information under this subsection if:
(a) the use or disclosure is for the
purposes of the pending correction request, or pending dispute, in relation to
the information; or
(b) the use or disclosure of the
information is required by or under an Australian law or a court/tribunal
order.
(5) If the credit reporting body uses or
discloses the information under subsection (4), the body must make a
written note of the use or disclosure.
Civil penalty: 500 penalty units.
Direction to destroy information etc.
(6) The Commissioner may, by legislative
instrument, direct the credit reporting body to destroy the information, or
ensure that the information is de‑identified, by a specified day.
(7) If the Commissioner gives a direction
under subsection (6) to the credit reporting body, the body must comply
with the direction.
Civil penalty: 1,000 penalty units.
(8) To avoid doubt, section 20M applies
in relation to credit reporting information that is de‑identified as a result
of the credit reporting body complying with the direction.
20ZA
Dealing with information if an Australian law etc. requires it to be retained
(1) This section applies if a credit
reporting body is not required:
(a) to do a thing referred to in
subsection 20V(2) to credit information because of subsection 20V(4);
or
(b) to do a thing referred to in
subsection 20V(5) to CRB derived information because of subsection 20V(7);
or
(c) to destroy credit reporting
information under subsection 20Y(2) because of subsection 20Y(3).
Use or disclosure
(2) The credit reporting body must not use or
disclose the information under Subdivision D of this Division.
Civil penalty: 2,000 penalty units.
(3) However, the credit reporting body may
use or disclose the information under this subsection if the use or disclosure
of the information is required by or under an Australian law or a
court/tribunal order.
(4) If the credit reporting body uses or
discloses the information under subsection (3), the body must make a
written note of the use or disclosure.
Civil penalty: 500 penalty units.
Other requirements
(5) Subdivision E of this Division (other
than section 20Q) does not apply in relation to the use or disclosure of
the information.
Note: Section 20Q deals with the security of
credit reporting information.
(6) Subdivision F of this Division does not
apply in relation to the information.
Division 3—Credit providers
Subdivision A—Introduction and application of this Division
21
Guide to this Division
This Division sets out rules that
apply to credit providers in relation to their handling of the following:
(a) credit
information;
(b) credit
eligibility information;
(c) CRB derived
information.
If a credit provider is an APP entity,
the rules apply in relation to that information in addition to, or instead of,
any relevant Australian Privacy Principles.
21A
Application of this Division to credit providers
(1) This Division applies to a credit
provider in relation to the following:
(a) credit information;
(b) credit eligibility information;
(c) CRB derived information.
(2) If the credit provider is an APP entity,
this Division may apply to the provider in relation to information referred to
in subsection (1) in addition to, or instead of, the Australian Privacy
Principles.
Subdivision B—Consideration of information privacy
21B
Open and transparent management of credit information etc.
(1) The object of this section is to ensure
that credit providers manage credit information and credit eligibility
information in an open and transparent way.
Compliance with this Division etc.
(2) A credit provider must take such steps as
are reasonable in the circumstances to implement practices, procedures and
systems relating to the provider’s functions or activities as a credit provider
that:
(a) will ensure that the provider
complies with this Division and the registered CR code if it binds the
provider; and
(b) will enable the provider to deal
with inquiries or complaints from individuals about the provider’s compliance
with this Division or the registered CR code if it binds the provider.
Policy about the management of credit information etc.
(3) A credit provider must have a clearly
expressed and up‑to‑date policy about the management of credit information and
credit eligibility information by the provider.
(4) Without limiting subsection (3), the
policy of the credit provider must contain the following information:
(a) the kinds of credit information
that the provider collects and holds, and how the provider collects and holds
that information;
(b) the kinds of credit eligibility
information that the provider holds and how the provider holds that
information;
(c) the kinds of CP derived
information that the provider usually derives from credit reporting information
disclosed to the provider by a credit reporting body under Division 2 of
this Part;
(d) the purposes for which the
provider collects, holds, uses and discloses credit information and credit
eligibility information;
(e) how an individual may access
credit eligibility information about the individual that is held by the
provider;
(f) how an individual may seek the
correction of credit information or credit eligibility information about the
individual that is held by the provider;
(g) how an individual may complain
about a failure of the provider to comply with this Division or the registered
CR code if it binds the provider;
(h) how the provider will deal with
such a complaint;
(i) whether the provider is likely to
disclose credit information or credit eligibility information to entities that
do not have an Australian link;
(j) if the provider is likely to
disclose credit information or credit eligibility information to such
entities—the countries in which those entities are likely to be located if it
is practicable to specify those countries in the policy.
Availability of policy etc.
(5) A credit provider must take such steps as
are reasonable in the circumstances to make the policy available:
(a) free of charge; and
(b) in such form as is appropriate.
Note: A credit provider will usually make the policy
available on the provider’s website.
(6) If a person or body requests a copy, in a
particular form, of the policy of a credit provider, the provider must take
such steps as are reasonable in the circumstances to give the person or body a
copy in that form.
Interaction with the Australian Privacy Principles
(7) If a credit provider is an APP entity,
Australian Privacy Principles 1.3 and 1.4 do not apply to the provider in
relation to credit information or credit eligibility information.
Subdivision C—Dealing with credit information
21C
Additional notification requirements for the collection of personal information
etc.
(1) At or before the time a credit provider
collects personal information about an individual that the provider is likely
to disclose to a credit reporting body, the provider must:
(a) notify the individual of the
following matters:
(i) the name and contact
details of the body;
(ii) any other matter
specified in the registered CR code; or
(b) otherwise ensure that the
individual is aware of those matters.
(2) If a credit provider is an APP entity, subsection (1)
applies to the provider in relation to personal information in addition to
Australian Privacy Principle 5.
(3) If a credit provider is an APP entity,
then the matters for the purposes of Australian Privacy Principle 5.1
include the following matters to the extent that the personal information
referred to in that principle is credit information or credit eligibility
information:
(a) that the policy (the credit
reporting policy) of the provider that is referred to in subsection 21B(3)
contains information about how an individual may access the credit eligibility
information about the individual that is held by the provider;
(b) that the credit reporting policy
of the provider contains information about how an individual may seek the
correction of credit information or credit eligibility information about the
individual that is held by the provider;
(c) that the credit reporting policy
of the provider contains information about how an individual may complain about
a failure of the provider to comply with this Division or the registered CR
code if it binds the provider;
(d) that the credit reporting policy
of the provider contains information about how the provider will deal with such
a complaint;
(e) whether the provider is likely to
disclose credit information or credit eligibility information to entities that
do not have an Australian link;
(f) if the provider is likely to
disclose credit information or credit eligibility information to such
entities—the countries in which those entities are likely to be located if it
is practicable to specify those countries in the credit reporting policy.
21D
Disclosure of credit information to a credit reporting body
Prohibition on disclosure
(1) A credit provider must not disclose
credit information about an individual to a credit reporting body (whether or
not the body’s credit reporting business is carried on in Australia).
Civil penalty: 2,000 penalty units.
Permitted disclosure
(2) Subsection (1) does not apply to the
disclosure of credit information about the individual if:
(a) the credit provider:
(i) is a member of a
recognised external dispute resolution scheme or is prescribed by the
regulations; and
(ii) knows, or believes on
reasonable grounds, that the individual is at least 18 years old; and
(b) the credit reporting body is:
(i) an agency; or
(ii) an organisation that
has an Australian link; and
(c) the information meets the
requirements of subsection (3).
Note: Section 21F limits the disclosure of
credit information if there is a ban period for the information.
(3) Credit information about an individual
meets the requirements of this subsection if:
(a) the information does not relate to
an act, omission, matter or thing that occurred or existed before the
individual turned 18; and
(b) if the information relates to
consumer credit or commercial credit—the credit is or has been provided, or
applied for, in Australia; and
(c) if the information is repayment
history information about the individual:
(i) the credit provider is
a licensee or is prescribed by the regulations; and
(ii) the consumer credit to
which the information relates is consumer credit in relation to which the
provider also discloses, or a credit provider has previously disclosed,
consumer credit liability information about the individual to the credit
reporting body; and
(iii) the provider complies
with any requirements relating to the disclosure of the information that are
prescribed by the regulations; and
(d) if the information is default
information about the individual:
(i) the credit provider
has given the individual a notice in writing stating that the provider intends
to disclose the information to the credit reporting body; and
(ii) at least 14 days have
passed since the giving of the notice.
(4) Paragraph (3)(a) does not apply to
identification information about the individual.
(5) Despite paragraph (3)(a), consumer
credit liability information about the individual may relate to consumer credit
that was entered into on a day before the individual turned 18, so long as the
consumer credit was not terminated, or did not otherwise cease to be in force,
on a day before the individual turned 18.
Written note of disclosure
(6) If a credit provider discloses credit
information under this section, the provider must make a written note of that
disclosure.
Civil penalty: 500 penalty units.
Interaction with the Australian Privacy Principles
(7) If a credit provider is an APP entity,
Australian Privacy Principles 6 and 8 do not apply to the disclosure by
the provider of credit information to a credit reporting body.
21E
Payment information must be disclosed to a credit reporting body
If:
(a) a credit provider has disclosed
default information about an individual to a credit reporting body under
section 21D; and
(b) after the default information was
disclosed, the amount of the overdue payment to which the information relates
is paid;
the provider must, within a reasonable period after the
amount is paid, disclose payment information about the amount to the body under
that section.
Civil penalty: 500 penalty units.
21F
Limitation on the disclosure of credit information during a ban period
(1) This section applies if:
(a) a credit reporting body holds credit
reporting information about an individual; and
(b) a credit provider requests the
body to disclose the information to the provider for the purpose of assessing
an application for consumer credit made to the provider by the individual, or a
person purporting to be the individual; and
(c) the body is not permitted to
disclose the information because there is a ban period for the information; and
(d) during the ban period, the
provider provides the consumer credit to which the application relates to the
individual, or the person purporting to be the individual.
(2) If the credit provider holds credit
information about the individual that relates to the consumer credit, the
provider must not, despite sections 21D and 21E, disclose the information
to a credit reporting body.
Civil penalty: 2,000 penalty units.
(3) Subsection (2) does not apply if the
credit provider has taken such steps as are reasonable in the circumstances to
verify the identity of the individual.
Subdivision D—Dealing with credit eligibility information etc.
21G
Use or disclosure of credit eligibility information
Prohibition on use or disclosure
(1) If a credit provider holds credit
eligibility information about an individual, the provider must not use or
disclose the information.
Civil penalty: 2,000 penalty units.
Permitted uses
(2) Subsection (1) does not apply to the
use of credit eligibility information about the individual if:
(a) the use is for a consumer credit
related purpose of the credit provider in relation to the individual; or
(b) the use is a permitted CP use in
relation to the individual; or
(c) both of the following apply:
(i) the credit provider
believes on reasonable grounds that the individual has committed a serious
credit infringement;
(ii) the provider uses the
information in connection with the infringement; or
(d) the use is required or authorised
by or under an Australian law or a court/tribunal order; or
(e) the use is a use prescribed by the
regulations.
Permitted disclosures
(3) Subsection (1) does not apply to the
disclosure of credit eligibility information about the individual if:
(a) the disclosure is a permitted CP
disclosure in relation to the individual; or
(b) the disclosure is to a related
body corporate of the credit provider; or
(c) the disclosure is to:
(i) a person for the
purpose of processing an application for credit made to the credit provider; or
(ii) a person who manages
credit provided by the credit provider for use in managing that credit; or
(d) both of the following apply:
(i) the credit provider
believes on reasonable grounds that the individual has committed a serious
credit infringement;
(ii) the provider discloses
the information to another credit provider that has an Australian link, or to
an enforcement body; or
(e) both of the following apply:
(i) the disclosure is for
the purposes of a recognised external dispute resolution scheme;
(ii) a credit provider or
credit reporting body is a member of the scheme; or
(f) the disclosure is required or
authorised by or under an Australian law or a court/tribunal order; or
(g) the disclosure is a disclosure
prescribed by the regulations.
Note: See section 21NA for additional rules
about the disclosure of credit eligibility information under paragraph (3)(b)
or (c).
(4) However, if the credit eligibility
information about the individual is, or was derived from, repayment history
information about the individual, the credit provider must not disclose the
information under subsection (3).
Civil penalty: 2,000 penalty units.
(5) Subsection (4) does not apply if:
(a) the recipient of the credit
eligibility information is another credit provider who is a licensee; or
(b) the disclosure is a permitted CP
disclosure within the meaning of section 21L; or
(c) the credit provider discloses the
credit eligibility information under paragraph (3)(b), (c), (e) or (f); or
(d) the credit provider discloses the
credit eligibility information under paragraph (3)(d) to an enforcement
body.
Written note of use or disclosure
(6) If a credit provider uses or discloses
credit eligibility information under this section, the provider must make a
written note of that use or disclosure.
Civil penalty: 500 penalty units.
Interaction with the Australian Privacy Principles
(7) If a credit provider is an APP entity,
Australian Privacy Principles 6, 7 and 8 do not apply to the provider in
relation to credit eligibility information.
(8) If:
(a) a credit provider is an APP
entity; and
(b) the credit eligibility information
is a government related identifier of the individual;
Australian Privacy Principle 9.2 does not apply to
the provider in relation to the information.
21H
Permitted CP uses in relation to individuals
A use by a credit provider of credit
eligibility information about an individual is a permitted CP use
in relation to the individual if:
(a) the relevant credit reporting
information was disclosed to the provider under a provision specified in column
1 of the table for the purpose (if any) specified in that column; and
(b) the provider uses the credit
eligibility information for the purpose specified in column 2 of the table.
|
Permitted CP uses
|
|
|
Column 1
|
Column 2
|
|
Item
|
The relevant credit
reporting information was disclosed to the credit provider under ...
|
The credit provider
uses the credit eligibility information for ...
|
|
1
|
item 1 of the table in subsection 20F(1) for the
purpose of assessing an application for consumer credit made by the
individual to the provider.
|
(a) a securitisation related purpose of the provider in
relation to the individual; or
(b) the internal management purposes of the provider that are
directly related to the provision or management of consumer credit by the
provider.
|
|
2
|
item 2 of the table in subsection 20F(1) for a
particular commercial credit related purpose of the provider in relation to
the individual.
|
that particular commercial credit related purpose.
|
|
3
|
item 2 of the table in subsection 20F(1) for the
purpose of assessing an application for commercial credit made by a person to
the provider.
|
the internal management purposes of the provider that are
directly related to the provision or management of commercial credit by the
provider.
|
|
4
|
item 3 of the table in subsection 20F(1) for a
credit guarantee purpose of the provider in relation to the individual.
|
(a) the credit guarantee purpose; or
(b) the internal management purposes of the provider that are
directly related to the provision or management of any credit by the
provider.
|
|
5
|
item 5 of the table in subsection 20F(1).
|
the purpose of assisting the individual to avoid
defaulting on his or her obligations in relation to consumer credit provided
by the provider to the individual.
|
|
6
|
item 6 of the table in subsection 20F(1) for a
particular securitisation related purpose of the provider in relation to the
individual.
|
that particular securitisation related purpose.
|
21J
Permitted CP disclosures between credit providers
Consent
(1) A disclosure by a credit provider of
credit eligibility information about an individual is a permitted CP
disclosure in relation to the individual if:
(a) the disclosure is to another
credit provider (the recipient) for a particular purpose; and
(b) the recipient has an Australian
link; and
(c) the individual expressly consents
to the disclosure of the information to the recipient for that purpose.
(2) The consent of the individual under paragraph (1)(c):
(a) must be given in writing unless:
(i) the disclosure of the
information to the recipient is for the purpose of assessing an application for
consumer credit or commercial credit made to the recipient; and
(ii) the application has
not been made in writing; and
(b) must be given to the credit
provider or recipient.
Agents of credit providers
(3) A disclosure by a credit provider of
credit eligibility information about an individual is a permitted CP
disclosure in relation to the individual if:
(a) the provider is acting as an agent
of another credit provider that has an Australian link; and
(b) while the provider is so acting,
the provider is a credit provider under subsection 6H(1); and
(c) the provider discloses the
information to the other credit provider in the provider’s capacity as such an
agent.
Securitisation arrangements etc.
(4) A disclosure by a credit provider of
credit eligibility information about an individual is a permitted CP
disclosure in relation to the individual if:
(a) the provider is a credit provider
under subsection 6J(1) in relation to credit; and
(b) the credit has been provided by,
or is credit for which an application has been made to, another credit provider
(the original credit provider) that has an Australian link; and
(c) the original credit provider is
not a credit provider under that subsection; and
(d) the information is disclosed to:
(i) the original credit
provider; or
(ii) another credit
provider that is a credit provider under that subsection in relation to the
credit and that has an Australian link; and
(e) the disclosure of the information
is reasonably necessary for:
(i) purchasing, funding or
managing, or processing an application for, the credit by means of a
securitisation arrangement; or
(ii) undertaking credit
enhancement in relation to the credit.
Mortgage credit secured by the same real property
(5) A disclosure by a credit provider of
credit eligibility information about an individual is a permitted CP
disclosure in relation to the individual if:
(a) the disclosure is to another
credit provider that has an Australian link; and
(b) both credit providers have
provided mortgage credit to the individual in relation to which the same real
property forms all or part of the security; and
(c) the individual is at least 60 days
overdue in making a payment in relation to the mortgage credit provided by
either provider; and
(d) the information is disclosed for
the purpose of either provider deciding what action to take in relation to the
overdue payment.
21K
Permitted CP disclosures relating to guarantees etc.
Offer to act as a guarantor etc.
(1) A disclosure by a credit provider of
credit eligibility information about an individual is a permitted CP
disclosure in relation to the individual if:
(a) either:
(i) the provider has
provided credit to the individual; or
(ii) the individual has applied
to the provider for credit; and
(b) the disclosure is to a person for
the purpose of that person considering whether:
(i) to offer to act as a
guarantor in relation to the credit; or
(ii) to offer property as
security for the credit; and
(c) the person has an Australian link;
and
(d) the individual expressly consents
to the disclosure of the information to the person for that purpose.
(2) The consent of the individual under paragraph (1)(d)
must be given in writing unless:
(a) if subparagraph (1)(a)(i)
applies—the application for the credit was not made in writing; or
(b) if subparagraph (1)(a)(ii)
applies—the application for the credit has not been made in writing.
Guarantors etc.
(3) A disclosure by a credit provider of
credit eligibility information about an individual is a permitted CP
disclosure in relation to the individual if:
(a) the disclosure is to a person who:
(i) is a guarantor in
relation to credit provided by the provider to the individual; or
(ii) has provided property
as security for such credit; and
(b) the person has an Australian link;
and
(c) either:
(i) the individual
expressly consents to the disclosure of the information to the person; or
(ii) if subparagraph (a)(i)
applies—the information is disclosed to the person for a purpose related to the
enforcement, or proposed enforcement, of the guarantee.
(4) The consent of the individual under subparagraph (3)(c)(i)
must be given in writing unless the application for the credit was not made in
writing.
21L
Permitted CP disclosures to mortgage insurers
A disclosure by a credit provider of
credit eligibility information about an individual is a permitted CP
disclosure in relation to the individual if the disclosure is to a
mortgage insurer that has an Australian link for:
(a) a mortgage insurance purpose of
the insurer in relation to the individual; or
(b) any purpose arising under a
contract for mortgage insurance that has been entered into between the provider
and the insurer.
21M
Permitted CP disclosures to debt collectors
(1) A disclosure by a credit provider of
credit eligibility information about an individual is a permitted CP
disclosure in relation to the individual if:
(a) the disclosure is to a person or
body that carries on a business or undertaking that involves the collection of
debts on behalf of others; and
(c) the information is disclosed to
the person or body for the primary purpose of the person or body collecting
payments that are overdue in relation to:
(i) consumer credit
provided by the provider to the individual; or
(ii) commercial credit
provided by the provider to a person; and
(d) the information is information of
a kind referred to in subsection (2).
Note: See section 21NA for additional rules
about the disclosure of credit eligibility information under this subsection.
(2) The information for the purposes of paragraph (1)(d)
is:
(a) identification information about
the individual; or
(b) court proceedings information
about the individual; or
(c) personal insolvency information about
the individual; or
(d) if subparagraph (1)(c)(i)
applies—default information about the individual if:
(i) the information
relates to a payment that the individual is overdue in making in relation to
consumer credit that has been provided by the credit provider to the
individual; and
(ii) the provider does not
hold, or has not held, payment information about the individual that relates to
that overdue payment.
21N
Permitted CP disclosures to other recipients
Mortgage credit assistance schemes
(1) A disclosure by a credit provider of
credit eligibility information about an individual is a permitted CP
disclosure in relation to the individual if:
(a) the disclosure is to a State or
Territory authority; and
(b) the functions or responsibilities
of the authority include:
(i) giving assistance
(directly or indirectly) that facilitates the provision of mortgage credit to
individuals; or
(ii) the management or
supervision of schemes or arrangements under which such assistance is given;
and
(c) the information is disclosed for
the purpose of enabling the authority:
(i) to determine the
extent of the assistance (if any) to give in relation to the provision of
mortgage credit to the individual; or
(ii) to manage or supervise
such a scheme or arrangement.
Assignment of debts owed to credit providers etc.
(2) A disclosure by a credit provider of
credit eligibility information about an individual is a permitted CP
disclosure in relation to the individual if:
(a) the disclosure is to one or more
of the following (the recipient):
(i) an entity;
(ii) a professional legal
adviser of the entity;
(iii) a professional
financial adviser of the entity; and
(b) the recipient has an Australian
link; and
(c) subsection (3) applies to the
information.
(3) This subsection applies to the credit
eligibility information if the recipient proposes to use the information:
(a) in the process of the entity
considering whether to:
(i) accept an assignment
of a debt owed to the credit provider; or
(ii) accept a debt owed to
the provider as security for credit provided to the provider; or
(iii) purchase an interest
in the provider or a related body corporate of the provider; or
(b) in connection with exercising
rights arising from the acceptance of such an assignment or debt, or the
purchase of such an interest.
21NA
Disclosures to certain persons and bodies that do not have an Australian link
Related bodies corporate and credit managers etc.
(1) Before a credit provider discloses credit
eligibility information under paragraph 21G(3)(b) or (c) to a related body
corporate, or person, that does not have an Australian link, the provider must
take such steps as are reasonable in the circumstances to ensure that the body
or person does not breach the following provisions (the relevant
provisions) in relation to the information:
(a) for a disclosure under paragraph 21G(3)(b)—section 22D;
(b) for a disclosure under paragraph 21G(3)(c)—section 22E;
(c) in both cases—the Australian
Privacy Principles (other than Australian Privacy Principles 1, 6, 7, 8
and 9.2).
(2) If:
(a) a credit provider discloses credit
eligibility information under paragraph 21G(3)(b) or (c) to a related body
corporate, or person, that does not have an Australian link; and
(b) the relevant provisions do not
apply, under this Act, to an act done, or a practice engaged in, by the body or
person in relation to the information; and
(c) the body or person does an act, or
engages in a practice, in relation to the information that would be a breach of
the relevant provisions if those provisions applied to the act or practice;
the act done, or the practice engaged in, by the body or
person is taken, for the purposes of this Act, to have been done, or engaged
in, by the provider and to be a breach of those provisions by the provider.
Debt collectors
(3) Before a credit provider discloses credit
eligibility information under subsection 21M(1) to a person or body that
does not have an Australian link, the provider must take such steps as are
reasonable in the circumstances to ensure that the person or body does not
breach the Australian Privacy Principles (other than Australian Privacy
Principle 1) in relation to the information.
(4) If:
(a) a credit provider discloses credit
eligibility information under subsection 21M(1) to a person or body that
does not have an Australian link; and
(b) the Australian Privacy Principles
do not apply, under this Act, to an act done, or a practice engaged in, by the
person or body in relation to the information; and
(c) the person or body does an act, or
engages in a practice, in relation to the information that would be a breach of
the Australian Privacy Principles (other than Australian Privacy Principle 1)
if those Australian Privacy Principles applied to the act or practice;
the act done, or the practice engaged in, by the person or
body is taken, for the purposes of this Act, to have been done, or engaged in,
by the provider and to be a breach of those Australian Privacy Principles by
the provider.
21P
Notification of a refusal of an application for consumer credit
(1) This section applies if:
(a) a credit provider refuses an
application for consumer credit made in Australia:
(i) by an individual; or
(ii) jointly by an
individual and one or more other persons (the other applicants);
and
(b) the refusal is based wholly or
partly on credit eligibility information about one or more of the following:
(i) the individual;
(ii) a person who is
proposing to act as a guarantor in relation to the consumer credit;
(iii) if the application is
an application of a kind referred to in subparagraph (a)(ii)—one of the
other applicants; and
(c) a credit reporting body disclosed
the relevant credit reporting information to the provider for the purposes of
assessing the application.
(2) The credit provider must, within a
reasonable period after refusing the application, give the individual a written
notice that:
(a) states that the application has
been refused; and
(b) states that the refusal is based
wholly or partly on credit eligibility information about one or more of the
persons referred to in paragraph (1)(b); and
(c) if that information is about the
individual—sets out:
(i) the name and contact
details of the credit reporting body that disclosed the relevant credit
reporting information to the provider; and
(ii) any other matter
specified in the registered CR code.
Subdivision E—Integrity of credit information and credit eligibility
information
21Q
Quality of credit eligibility information
(1) A credit provider must take such steps
(if any) as are reasonable in the circumstances to ensure that the credit
eligibility information the provider collects is accurate, up‑to‑date and
complete.
(2) A credit provider must take such steps
(if any) as are reasonable in the circumstances to ensure that the credit
eligibility information the provider uses or discloses is, having regard to the
purpose of the use or disclosure, accurate, up‑to‑date, complete and relevant.
(3) If a credit provider is an APP entity,
Australian Privacy Principle 10 does not apply to the provider in relation
to credit eligibility information.
21R
False or misleading credit information or credit eligibility information
Offences
(1) A credit provider commits an offence if:
(a) the provider discloses credit information
under section 21D; and
(b) the information is false or
misleading in a material particular.
Penalty: 200 penalty units.
(2) A credit provider commits an offence if:
(a) the provider uses or discloses
credit eligibility information under this Division; and
(b) the information is false or
misleading in a material particular.
Penalty: 200 penalty units.
Civil penalties
(3) A credit provider must not disclose
credit information under section 21D if the information is false or
misleading in a material particular.
Civil penalty: 2,000 penalty units.
(4) A credit provider must not use or
disclose credit eligibility information under this Division if the information
is false or misleading in a material particular.
Civil penalty: 2,000 penalty units.
21S
Security of credit eligibility information
(1) If a credit provider holds credit
eligibility information, the provider must take such steps as are reasonable in
the circumstances to protect the information:
(a) from misuse, interference and
loss; and
(b) from unauthorised access,
modification or disclosure.
(2) If:
(a) a credit provider holds credit
eligibility information about an individual; and
(b) the provider no longer needs the
information for any purpose for which the information may be used or disclosed
by the provider under this Division; and
(c) the provider is not required by or
under an Australian law, or a court/tribunal order, to retain the information;
the provider must take such steps as are reasonable in the
circumstances to destroy the information or to ensure that the information is
de‑identified.
Civil penalty: 1,000 penalty units.
(3) If a credit provider is an APP entity,
Australian Privacy Principle 11 does not apply to the provider in relation
to credit eligibility information.
Subdivision F—Access to, and correction of, information
21T
Access to credit eligibility information
Access
(1) If a credit provider holds credit
eligibility information about an individual, the provider must, on request by
an access seeker in relation to the information, give the access seeker access
to the information.
Exceptions to access
(2) Despite subsection (1), the credit
provider is not required to give the access seeker access to the credit
eligibility information to the extent that:
(a) giving access would be unlawful;
or
(b) denying access is required or
authorised by or under an Australian law or a court/tribunal order; or
(c) giving access would be likely to
prejudice one or more enforcement related activities conducted by, or on behalf
of, an enforcement body.
Dealing with requests for access
(3) The credit provider must respond to the
request within a reasonable period after the request is made.
Means of access
(4) If the credit provider gives access to
the credit eligibility information, the access must be given in the manner set
out in the registered CR code.
Access charges
(5) If the credit provider is an agency, the
provider must not charge the access seeker for the making of the request or for
giving access to the information.
(6) If a credit provider is an organisation
or small business operator, any charge by the provider for giving access to the
information must not be excessive and must not apply to the making of the
request.
Refusal to give access
(7) If the provider refuses to give access to
the information because of subsection (2), the provider must give the
access seeker a written notice that:
(a) sets out the reasons for the
refusal except to the extent that, having regard to the grounds for the
refusal, it would be unreasonable to do so; and
(b) states that, if the access seeker
is not satisfied with the response to the request, the access seeker may:
(i) access a recognised
external dispute resolution scheme of which the provider is a member; or
(ii) make a complaint to
the Commissioner under Part V.
Interaction with the Australian Privacy Principles
(8) If a credit provider is an APP entity,
Australian Privacy Principle 12 does not apply to the provider in relation
to credit eligibility information.
21U
Correction of credit information or credit eligibility information
(1) If:
(a) a
credit provider holds credit information or credit eligibility information
about an individual; and
(b) the provider is satisfied that,
having regard to a purpose for which the information is held by the provider,
the information is inaccurate, out‑of‑date, incomplete, irrelevant or
misleading;
the provider must take such steps (if any) as are
reasonable in the circumstances to correct the information to ensure that, having
regard to the purpose for which it is held, the information is accurate, up‑to‑date,
complete, relevant and not misleading.
Notice of correction
(2) If:
(a) the credit provider corrects
credit information or credit eligibility information under subsection (1);
and
(b) the provider has previously
disclosed the information under:
(i) this Division (other
than subsection 21V(4)); or
(ii) the Australian Privacy
Principles (other than Australian Privacy Principle 4.2);
the provider must, within a reasonable period, give each
recipient of the information written notice of the correction.
(3) Subsection (2) does not apply if:
(a) it is impracticable for the credit
provider to give the notice under that subsection; or
(b) the credit provider is required by
or under an Australian law, or a court/tribunal order, not to give the notice
under that subsection.
Interaction with the Australian Privacy Principles
(4) If a credit provider is an APP entity,
Australian Privacy Principle 13:
(a) applies to the provider in
relation to credit information or credit eligibility information that is
identification information; but
(b) does not apply to the provider in
relation to any other kind of credit information or credit eligibility
information.
Note: Identification information may be corrected
under this section or Australian Privacy Principle 13.
21V
Individual may request the correction of credit information etc.
Request
(1) An individual may request a credit
provider to correct personal information about the individual if:
(a) the personal information is:
(i) credit information
about the individual; or
(ii) CRB derived
information about the individual; or
(iii) CP derived information
about the individual; and
(b) the provider holds at least one
kind of the personal information referred to in paragraph (a).
Correction
(2) If the credit provider is satisfied that
the personal information is inaccurate, out‑of‑date, incomplete, irrelevant or
misleading, the provider must take such steps (if any) as are reasonable in the
circumstances to correct the information within:
(a) the period of 30 days that starts
on the day on which the request is made; or
(b) such longer period as the
individual has agreed to in writing.
Consultation
(3) If the credit provider considers that the
provider cannot be satisfied of the matter referred to in subsection (2)
in relation to the personal information without consulting either or both of
the following (the interested party):
(a) a credit reporting body that holds
or held the information and that has an Australian link;
(b) another credit provider that holds
or held the information and that has an Australian link;
the provider must consult that interested party, or those
interested parties, about the individual’s request.
(4) The use or disclosure of personal
information about the individual for the purposes of the consultation is taken,
for the purposes of this Act, to be a use or disclosure that is authorised by
this subsection.
No charge
(5) The credit provider must not charge the
individual for the making of the request or for correcting the information.
Interaction with the Australian Privacy Principles
(6) If a credit provider is an APP entity,
Australian Privacy Principle 13:
(a) applies to the provider in
relation to personal information referred to in paragraph (1)(a) that is
identification information; but
(b) does not apply to the provider in
relation to any other kind of personal information referred to in that
paragraph.
Note: Identification information may be corrected
under this section or Australian Privacy Principle 13.
21W
Notice of correction etc. must be given
(1) This section applies if an individual
requests a credit provider to correct personal information under subsection 21V(1).
Notice of correction etc.
(2) If the credit provider corrects personal
information about the individual under subsection 21V(2), the provider
must, within a reasonable period:
(a) give the individual written notice
of the correction; and
(b) if the provider consulted an
interested party under subsection 21V(3) about the individual’s
request—give the party written notice of the correction; and
(c) if the correction relates to
information that the provider has previously disclosed under:
(i) this Division (other
than subsection 21V(4)); or
(ii) the Australian Privacy
Principles (other than Australian Privacy Principle 4.2);
give each recipient of the
information written notice of the correction.
(3) If the credit provider does not correct
the personal information under subsection 21V(2), the provider must,
within a reasonable period, give the individual written notice that:
(a) states that the correction has not
been made; and
(b) sets out the provider’s reasons
for not correcting the information (including evidence substantiating the
correctness of the information); and
(c) states that, if the individual is
not satisfied with the response to the request, the individual may:
(i) access a recognised
external dispute resolution scheme of which the provider is a member; or
(ii) make a complaint to
the Commissioner under Part V.
Exceptions
(4) Paragraph (2)(c) does not apply if
it is impracticable for the credit provider to give the notice under that
paragraph.
(5) Subsection (2) or (3) does not apply
if the credit provider is required by or under an Australian law, or a
court/tribunal order, not to give the notice under that subsection.
Division 4—Affected
information recipients
22
Guide to this Division
This Division sets out rules that
apply to affected information recipients in relation to their handling of their
regulated information.
If an affected information recipient
is an APP entity, the rules apply in relation to the regulated information of
the recipient in addition to, or instead of, any relevant Australian Privacy
Principles.
Subdivision A—Consideration of information privacy
22A
Open and transparent management of regulated information
(1) The object of this section is to ensure
that an affected information recipient manages the regulated information of the
recipient in an open and transparent way.
Compliance with this Division etc.
(2) An affected information recipient must
take such steps as are reasonable in the circumstances to implement practices,
procedures and systems relating to the recipient’s functions or activities
that:
(a) will ensure that the recipient
complies with this Division and the registered CR code if it binds the
recipient; and
(b) will enable the recipient to deal
with inquiries or complaints from individuals about the recipient’s compliance
with this Division or the registered CR code if it binds the recipient.
Policy about the management of regulated information
(3) An affected information recipient must
have a clearly expressed and up‑to‑date policy about the recipient’s management
of the regulated information of the recipient.
(4) Without limiting subsection (3), the
policy of the affected information recipient must contain the following
information:
(a) the kinds of regulated information
that the recipient collects and holds, and how the recipient collects and holds
that information;
(b) the purposes for which the
recipient collects, holds, uses and discloses regulated information;
(c) how an individual may access
regulated information about the individual that is held by the recipient and
seek the correction of such information;
(d) how an individual may complain
about a failure of the recipient to comply with this Division or the registered
CR code if it binds the recipient;
(e) how the recipient will deal with
such a complaint.
Availability of policy etc.
(5) An affected information recipient must
take such steps as are reasonable in the circumstances to make the policy
available:
(a) free of charge; and
(b) in such form as is appropriate.
Note: An affected information recipient will usually
make the policy available on the recipient’s website.
(6) If a person or body requests a copy, in a
particular form, of the policy of an affected information recipient, the
recipient must take such steps as are reasonable in the circumstances to give
the person or body a copy in that form.
Interaction with the Australian Privacy Principles
(7) If an affected information recipient is
an APP entity, Australian Privacy Principles 1.3 and 1.4 do not apply to
the recipient in relation to the regulated information of the recipient.
Subdivision B—Dealing with regulated information
22B
Additional notification requirements for affected information recipients
If an affected information recipient is
an APP entity, then the matters for the purposes of Australian Privacy
Principle 5.1 include the following matters to the extent that the
personal information referred to in that principle is regulated information of
the recipient:
(a) that the policy (the credit
reporting policy) of the recipient that is referred to in subsection 22A(3)
contains information about how an individual may access the regulated
information about the individual that is held by the recipient, and seek the
correction of such information;
(b) that the credit reporting policy
of the recipient contains information about how an individual may complain
about a failure of the recipient to comply with this Division or the registered
CR code if it binds the recipient; and
(c) that the credit reporting policy
of the recipient contains information about how the recipient will deal with
such a complaint.
22C
Use or disclosure of information by mortgage insurers or trade insurers
Prohibition on use or disclosure
(1) If:
(a) a mortgage insurer or trade
insurer holds or held personal information about an individual; and
(b) the information was disclosed to
the insurer by a credit reporting body or credit provider under Division 2
or 3 of this Part;
the insurer must not use or disclose the information, or
any personal information about the individual derived from that information.
Civil penalty: 2,000 penalty units.
Permitted uses
(2) Subsection (1) does not apply to the
use of the information if:
(a) for a mortgage insurer—the use is
for:
(i) a mortgage insurance
purpose of the insurer in relation to the individual; or
(ii) any purpose arising
under a contract for mortgage insurance that has been entered into between the
credit provider and the insurer; or
(b) for a trade insurer—the use is for
a trade insurance purpose of the insurer in relation to the individual; or
(c) the use is required or authorised
by or under an Australian law or a court/tribunal order.
Permitted disclosure
(3) Subsection (1) does not apply to the
disclosure of the information if the disclosure is required or authorised by or
under an Australian law or a court/tribunal order.
Interaction with the Australian Privacy Principles
(4) If the mortgage insurer or trade insurer
is an APP entity, Australian Privacy Principles 6, 7 and 8 do not apply to
the insurer in relation to the information.
(5) If:
(a) the mortgage insurer or trade
insurer is an APP entity; and
(b) the information is a government
related identifier of the individual;
Australian Privacy Principle 9.2 does not apply to
the insurer in relation to the information.
22D
Use or disclosure of information by a related body corporate
Prohibition on use or disclosure
(1) If:
(a) a body corporate holds or held
credit eligibility information about an individual; and
(b) the information was disclosed to
the body by a credit provider under paragraph 21G(3)(b);
the body must not use or disclose the information, or any
personal information about the individual derived from that information.
Civil penalty: 1,000 penalty units.
Permitted use or disclosure
(2) Subsection (1) does not apply to the
use or disclosure of the information by the body corporate if the body would be
permitted to use or disclose the information under section 21G if the body
were the credit provider.
(3) In determining whether the body corporate
would be permitted to use or disclose the information under section 21G,
assume that the body is whichever of the following is applicable:
(a) the credit provider that has
provided the relevant credit to the individual;
(b) the credit provider to which the
relevant application for credit was made by the individual.
Interaction with the Australian Privacy Principles
(4) If the body corporate is an APP entity,
Australian Privacy Principles 6, 7 and 8 do not apply to the body in
relation to the information.
(5) If:
(a) the body corporate is an APP
entity; and
(b) the information is a government
related identifier of the individual;
Australian Privacy Principle 9.2 does not apply to
the body in relation to the information.
22E
Use or disclosure of information by credit managers etc.
Prohibition on use or disclosure
(1) If:
(a) a person holds or held credit
eligibility information about an individual; and
(b) the information was disclosed to
the person by a credit provider under paragraph 21G(3)(c);
the person must not use or disclose the information, or
any personal information about the individual derived from that information.
Civil penalty: 1,000 penalty units.
Permitted uses
(2) Subsection (1) does not apply to the
use of the information if:
(a) the person uses the information
for the purpose for which it was disclosed to the person under paragraph 21G(3)(c);
or
(b) the use is required or authorised
by or under an Australian law or a court/tribunal order.
Permitted disclosure
(3) Subsection (1) does not apply to the
disclosure of the information if:
(a) the disclosure is to the credit
provider; or
(b) the disclosure is required or
authorised by or under an Australian law or a court/tribunal order.
Interaction with the Australian Privacy Principles
(4) If the person is an APP entity,
Australian Privacy Principles 6, 7 and 8 do not apply to the person in
relation to the information.
(5) If:
(a) the person is an APP entity; and
(b) the information is a government
related identifier of the individual;
Australian Privacy Principle 9.2 does not apply to
the person in relation to the information.
22F
Use or disclosure of information by advisers etc.
Prohibition on use or disclosure
(1) If:
(a) any of the following (the recipient)
holds or held credit eligibility information about an individual:
(i) an entity;
(ii) a professional legal
adviser of the entity;
(iii) a professional
financial adviser of the entity; and
(b) the information was disclosed to
the recipient by a credit provider under subsection 21N(2);
the recipient must not use or disclose the information, or
any personal information about the individual derived from that information.
Civil penalty: 1,000 penalty units.
Permitted uses
(2) Subsection (1) does not apply to the
use of the information if:
(a) for a recipient that is the
entity—the information is used for a matter referred to in subsection 21N(3);
or
(b) for a recipient that is the
professional legal adviser, or professional financial adviser, of the
entity—the information is used:
(i) in the adviser’s
capacity as an adviser of the entity; and
(ii) in connection with
advising the entity about a matter referred to in subsection 21N(3); or
(c) the use is required or authorised
by or under an Australian law or a court/tribunal order.
Permitted disclosure
(3) Subsection (1) does not apply to the
disclosure of the information if the disclosure is required or authorised by or
under an Australian law or a court/tribunal order.
Interaction with the Australian Privacy Principles
(4) If the recipient is an APP entity,
Australian Privacy Principles 6, 7 and 8 do not apply to the recipient in
relation to the information.
(5) If:
(a) the recipient is an APP entity;
and
(b) the information is a government
related identifier of the individual;
Australian Privacy Principle 9.2 does not apply to
the recipient in relation to the information.
Division 5—Complaints
23
Guide to this Division
This Division deals with complaints
about credit reporting bodies or credit providers.
Individuals may complain to credit
reporting bodies or credit providers about acts or practices that may be a
breach of certain provisions of this Part or the registered CR code.
If a complaint is made, the respondent
for the complaint must investigate the complaint and make a decision about the
complaint.
23A
Individual may complain about a breach of a provision of this Part etc.
Complaint
(1) An individual may complain to a credit
reporting body about an act or practice engaged in by the body that may be a
breach of either of the following provisions in relation to the individual:
(a) a provision of this Part (other
than section 20R or 20T);
(b) a provision of the registered CR
code (other than a provision that relates to that section).
Note: A complaint about a breach of section 20R
or 20T, or a provision of the registered CR code that relates to that section,
may be made to the Commissioner under Part V.
(2) An individual may complain to a credit provider
about an act or practice engaged in by the provider that may be a breach of
either of the following provisions in relation to the individual:
(a) a provision of this Part (other
than section 21T or 21V);
(b) a provision of the registered CR
code (other than a provision that relates to that section) if it binds the
credit provider.
Note: A complaint about a breach of section 21T
or 21V, or a provision of the registered CR code that relates to that section,
may be made to the Commissioner under Part V.
Nature of complaint
(3) If an individual makes a complaint, the
individual must specify the nature of the complaint.
(4) The complaint may relate to personal
information that has been destroyed or de‑identified.
No charge
(5) The credit reporting body or credit
provider must not charge the individual for the making of the complaint or for
dealing with the complaint.
23B
Dealing with complaints
(1) If an individual makes a complaint under
section 23A, the respondent for the complaint:
(a) must, within 7 days after the
complaint is made, give the individual a written notice that:
(i) acknowledges the
making of the complaint; and
(ii) sets out how the
respondent will deal with the complaint; and
(b) must investigate the complaint.
Consultation about the complaint
(2) If the respondent for the complaint
considers that it is necessary to consult a credit reporting body or credit
provider about the complaint, the respondent must consult the body or provider.
(3) The use or disclosure of personal information
about the individual for the purposes of the consultation is taken, for the
purposes of this Act, to be a use or disclosure that is authorised by this
subsection.
Decision about the complaint
(4) After investigating the complaint, the
respondent must, within the period referred to in subsection (5), make a
decision about the complaint and give the individual a written notice that:
(a) sets out the decision; and
(b) states that, if the individual is
not satisfied with the decision, the individual may:
(i) access a recognised
external dispute resolution scheme of which the respondent is a member; or
(ii) make a complaint to
the Commissioner under Part V.
(5) The period for the purposes of subsection (4)
is:
(a) the period of 30 days that starts
on the day on which the complaint is made; or
(b) such longer period as the
individual has agreed to in writing.
23C
Notification requirements relating to correction complaints
(1) This section applies if an individual
makes a complaint under section 23A about an act or practice that may
breach section 20S or 21U (which deal with the correction of personal
information by credit reporting bodies and credit providers).
Notification of complaint etc.
(2) If:
(a) the respondent for the complaint
is a credit reporting body; and
(b) the complaint relates to credit
information or credit eligibility information that a credit provider holds;
the respondent must, in writing:
(c) notify the provider of the making
of the complaint as soon as practicable after it is made; and
(d) notify the provider of the making
of a decision about the complaint under subsection 23B(4) as soon as
practicable after it is made.
(3) If:
(a) the respondent for the complaint
is a credit provider; and
(b) the complaint relates to:
(i) credit reporting
information that a credit reporting body holds; or
(ii) credit information or
credit eligibility information that another credit provider holds;
the respondent must, in writing:
(c) notify the body or other provider
(as the case may be) of the making of the complaint as soon as practicable
after it is made; and
(d) notify the body or other provider
(as the case may be) of the making of a decision about the complaint under
subsection 23B(4) as soon as practicable after it is made.
Notification of recipients of disclosed information
(4) If:
(a) a credit reporting body discloses
credit reporting information to which the complaint relates under Division 2
of this Part; and
(b) at the time of the disclosure, a
decision about the complaint under subsection 23B(4) has not been made;
the body must, at that time, notify in writing the
recipient of the information of the complaint.
(5) If:
(a) a credit provider discloses
personal information to which the complaint relates under Division 3 of
this Part or under the Australian Privacy Principles; and
(b) at the time of the disclosure, a
decision about the complaint under subsection 23B(4) has not been made;
the provider must, at that time, notify in writing the
recipient of the information of the complaint.
Exceptions
(6) Subsection (2), (3), (4) or (5) does
not apply if:
(a) it is impracticable for the credit
reporting body or credit provider to give the notification under that
subsection; or
(b) the credit reporting body or
credit provider is required by or under an Australian law, or a court/tribunal
order, not to give the notification under that subsection.
Division 6—Unauthorised
obtaining of credit reporting information etc.
24
Obtaining credit reporting information from a credit reporting body
Offences
(1) An entity commits an offence if:
(a) the entity obtains credit
reporting information; and
(b) the information is obtained from a
credit reporting body; and
(c) the entity is not:
(i) an entity to which the
body is permitted to disclose the information under Division 2 of this
Part; or
(ii) an access seeker for
the information.
Penalty: 200 penalty units.
(2) An entity commits an offence if:
(a) the entity obtains credit
reporting information; and
(b) the information is obtained from a
credit reporting body; and
(c) the information is obtained by
false pretence.
Penalty: 200 penalty units.
Civil penalties
(3) An entity must not obtain credit
reporting information from a credit reporting body if the entity is not:
(a) an entity to which the body is
permitted to disclose the information under Division 2 of this Part; or
(b) an access seeker for the
information.
Civil penalty: 2,000 penalty units.
(4) An entity must not obtain, by false
pretence, credit reporting information from a credit reporting body.
Civil penalty: 2,000 penalty units.
24A
Obtaining credit eligibility information from a credit provider
Offences
(1) An entity commits an offence if:
(a) the entity obtains credit
eligibility information; and
(b) the information is obtained from a
credit provider; and
(c) the entity is not:
(i) an entity to which the
provider is permitted to disclose the information under Division 3 of this
Part; or
(ii) an access seeker for
the information.
Penalty: 200 penalty units.
(2) An entity commits an offence if:
(a) the entity obtains credit
eligibility information; and
(b) the information is obtained from a
credit provider; and
(c) the information is obtained by
false pretence.
Penalty: 200 penalty units.
Civil penalties
(3) An entity must not obtain credit
eligibility information from a credit provider if the entity is not:
(a) an entity to which the provider is
permitted to disclose the information under Division 3 of this Part; or
(b) an access seeker for the
information.
Civil penalty: 2,000 penalty units.
(4) An entity must not obtain, by false
pretence, credit eligibility information from a credit provider.
Civil penalty: 2,000 penalty units.
Division 7—Court orders
25
Compensation orders
(1) The Federal Court or the Federal Circuit
Court may order an entity to compensate a person for loss or damage (including
injury to the person’s feelings or humiliation) suffered by the person if:
(a) either:
(i) a civil penalty order
has been made against the entity for a contravention of a civil penalty
provision (other than section 13G); or
(ii) the entity is found
guilty of an offence against this Part; and
(b) that loss or damage resulted from
the contravention or commission of the offence.
The order must specify the amount of compensation.
(2) The court may make the order only if:
(a) the person applies for an order
under this section; and
(b) the application is made within 6
years of the day the cause of action that relates to the contravention or
commission of the offence accrued.
(3) If the court makes the order, the amount
of compensation specified in the order that is to be paid to the person may be
recovered as a debt due to the person.
25A
Other orders to compensate loss or damage
(1) This section applies if:
(a) either:
(i) a civil penalty order
has been made against an entity for a contravention of a civil penalty
provision (other than section 13G); or
(ii) an entity is found
guilty of an offence against this Part; and
(b) a person has suffered, or is
likely to suffer, loss or damage (including injury to the person’s feelings or
humiliation) as a result of the contravention or commission of the offence.
(2) The Federal Court or the Federal Circuit
Court may make such order as the Court considers appropriate against the entity
to:
(a) compensate the person, in whole or
in part, for that loss or damage; or
(b) prevent or reduce that loss or
damage suffered, or likely to be suffered, by the person.
(3) Without limiting subsection (2),
examples of orders the court may make include:
(a) an order directing the entity to
perform any reasonable act, or carry out any reasonable course of conduct, to
redress the loss or damage suffered by the person; and
(b) an order directing the entity to
pay the person a specified amount to reimburse the person for expenses
reasonably incurred by the person in connection with the contravention or
commission of the offence; and
(c) an order directing the defendant
to pay to the person the amount of loss or damage the plaintiff suffered.
(4) The court may make the order only if:
(a) the person applies for an order
under this section; and
(b) the application is made within 6
years of the day the cause of action that relates to the contravention or
commission of the offence accrued.
(5) If the court makes an order that the
entity pay an amount to the person, the person may recover the amount as a debt
due to the person.
Part IIIB—Privacy codes
Division 1—Introduction
26
Guide to this Part
This Part deals with privacy codes.
Division 2 deals with codes of
practice about information privacy, called APP codes. APP code developers or
the Commissioner may develop APP codes, which:
(a) must set out
how one or more of the Australian Privacy Principles are to be applied or
complied with; and
(b) may impose
additional requirements to those imposed by the Australian Privacy Principles;
and
(c) may deal
with other specified matters.
If the Commissioner includes an APP
code on the Codes Register, an APP entity bound by the code must not breach it.
A breach of a registered APP code is an interference with the privacy of an
individual.
Division 3 deals with a code of
practice about credit reporting, called a CR code. CR code developers or the
Commissioner may develop a CR code, which:
(a) must set out
how one or more of the provisions of Part IIIA are to be applied or
complied with; and
(b) must deal
with matters required or permitted by Part IIIA to be provided for by the
registered CR code; and
(c) may
deal with other specified matters.
If the Commissioner includes a CR code
on the Codes Register, an entity bound by the code must not breach it. A breach
of the registered CR code is an interference with the privacy of an individual.
Division 4 deals with the Codes
Register, guidelines relating to codes and the review of the operation of
registered codes.
Division 2—Registered APP
codes
Subdivision A—Compliance with registered APP codes etc.
26A
APP entities to comply with binding registered APP codes
An APP entity must not do an act, or
engage in a practice, that breaches a registered APP code that binds the
entity.
26B
What is a registered APP code
(1) A registered APP code is an
APP code:
(a) that is included on the Codes
Register; and
(b) that is in force.
(2) A registered APP code is a legislative
instrument.
(3) Despite subsection 12(2) of the Legislative
Instruments Act 2003, a registered APP code may be expressed to take effect
before the date it is registered under that Act.
Note: An APP code cannot come into force before it
is included on the Codes Register: see paragraph 26C(2)(c).
26C
What is an APP code
(1) An APP code is a written
code of practice about information privacy.
(2) An APP code must:
(a) set out how one or more of the
Australian Privacy Principles are to be applied or complied with; and
(b) specify the APP entities that are
bound by the code, or a way of determining the APP entities that are bound by
the code; and
(c) set out the period during which
the code is in force (which must not start before the day the code is
registered under section 26H).
(3) An APP code may do one or more of the
following:
(a) impose additional requirements to
those imposed by one or more of the Australian Privacy Principles, so long as
the additional requirements are not contrary to, or inconsistent with, those
principles;
(b) cover an act or practice that is
exempt within the meaning of subsection 7B(1), (2) or (3);
(c) deal with the internal handling of
complaints;
(d) provide for the reporting to the
Commissioner about complaints;
(e) deal with any other relevant
matters.
(4) An APP code may be expressed to apply to
any one or more of the following:
(a) all personal information or a
specified type of personal information;
(b) a specified activity, or a
specified class of activities, of an APP entity;
(c) a specified industry sector or
profession, or a specified class of industry sectors or professions;
(d) APP entities that use technology
of a specified kind.
(5) An APP code is not a legislative
instrument.
26D
Extension of Act to exempt acts or practices covered by registered APP codes
If a registered APP code covers an act
or practice that is exempt within the meaning of subsection 7B(1), (2) or
(3), this Act applies in relation to the code as if that act or practice were
not exempt.
Subdivision B—Development and registration of APP codes
26E
Development of APP codes by APP code developers
Own initiative
(1) An APP code developer may develop an APP
code.
At the Commissioner’s request
(2) The Commissioner may, in writing, request
an APP code developer to develop an APP code, and apply to the Commissioner for
the code to be registered, if the Commissioner is satisfied it is in the public
interest for the code to be developed.
(3) The request must:
(a) specify the period within which
the request must be complied with; and
(b) set out the effect of section 26A.
(4) The period:
(a) must run for at least 120 days from
the date the request is made; and
(b) may be extended by the
Commissioner.
(5) The request may:
(a) specify one or more matters that
the APP code must deal with; and
(b) specify the APP entities, or a
class of APP entities, that should be bound by the code.
(6) Despite paragraph (5)(a), the
Commissioner must not require an APP code to cover an act or practice that is
exempt within the meaning of subsection 7B(1), (2) or (3). However, the
APP code that is developed by the APP code developer may cover such an act or
practice.
(7) The Commissioner must make a copy of the
request publicly available as soon as practicable after the request is made.
26F
Application for registration of APP codes
(1) If an APP code developer develops an APP
code, the developer may apply to the Commissioner for registration of the code.
(2) Before making the application, the APP
code developer must:
(a) make a draft of the APP code
publicly available; and
(b) invite the public to make
submissions to the developer about the draft within a specified period (which
must run for at least 28 days); and
(c) give consideration to any
submissions made within the specified period.
(3) The application must:
(a) be made in the form and manner
specified by the Commissioner; and
(b) be accompanied by such information
as is specified by the Commissioner.
(4) The APP code developer may vary the APP
code at any time before the Commissioner registers the code, but only with the
consent of the Commissioner.
26G
Development of APP codes by the Commissioner
(1) This section applies if the Commissioner
made a request under subsection 26E(2) and either:
(a) the request has not been complied
with; or
(b) the request has been complied with
but the Commissioner has decided not to register, under section 26H, the
APP code that was developed as requested.
(2) The Commissioner may develop an APP code
if the Commissioner is satisfied that it is in public interest to develop the
code. However, despite subsection 26C(3)(b), the APP code must not cover
an act or practice that is exempt within the meaning of subsection 7B(1),
(2) or (3).
(3) Before registering the APP code under
section 26H, the Commissioner must:
(a) make a draft of the code publicly
available; and
(b) invite the public to make
submissions to the Commissioner about the draft within a specified period
(which must run for at least 28 days); and
(c) give consideration to any
submissions made within the specified period.
26H
Commissioner may register APP codes
(1) If:
(a) an application for registration of
an APP code is made under section 26F; or
(b) the Commissioner develops an APP
code under section 26G;
the Commissioner may register the code by including it on
the Codes Register.
(2) In deciding whether to register the APP
code, the Commissioner may:
(a) consult any person the
Commissioner considers appropriate; and
(b) consider the matters specified in
any relevant guidelines made under section 26V.
(3) If the Commissioner decides not to
register an APP code developed by an APP code developer, the Commissioner must
give written notice of the decision to the developer, including reasons for the
decision.
Subdivision C—Variation and removal of registered APP codes
26J
Variation of registered APP codes
(1) The Commissioner may, in writing, approve
a variation of a registered APP code:
(a) on his or her own initiative; or
(b) on application by an APP entity
that is bound by the code; or
(c) on application by a body or
association representing one or more APP entities that are bound by the code.
(2) An application under paragraph (1)(b)
or (c) must:
(a) be made in the form and manner
specified by the Commissioner; and
(b) be accompanied by such information
as is specified by the Commissioner.
(3) If the Commissioner varies a registered
APP code on his or her own initiative, then, despite subsection 26C(3)(b),
the variation must not deal with an act or practice that is exempt within the
meaning of subsection 7B(1), (2) or (3).
(4) Before deciding whether to approve a variation,
the Commissioner must:
(a) make a draft of the variation
publicly available; and
(b) consult any person the
Commissioner considers appropriate about the variation; and
(c) consider the extent to which
members of the public have been given an opportunity to comment on the
variation.
(5) In deciding whether to approve a
variation, the Commissioner may consider the matters specified in any relevant
guidelines made under section 26V.
(6) If the Commissioner approves a variation
of a registered APP code (the original code), the Commissioner
must:
(a) remove the original code from the
Codes Register; and
(b) register the APP code, as varied,
by including it on the Register.
(7) If the Commissioner approves a variation,
the variation comes into effect on the day specified in the approval, which
must not be before the day on which the APP code, as varied, is included on the
Codes Register.
(8) An approval is not a legislative
instrument.
Note: The APP code, as varied, is a legislative
instrument once it is included on the Codes Register: see section 26B.
26K
Removal of registered APP codes
(1) The Commissioner may remove a registered
APP code from the Codes Register:
(a) on his or her own initiative; or
(b) on application by an APP entity
that is bound by the code; or
(c) on application by a body or
association representing one or more APP entities that are bound by the code.
(2) An application under paragraph (1)(b)
or (c) must:
(a) be made in the form and manner
specified by the Commissioner; and
(b) be accompanied by such information
as is specified by the Commissioner.
(3) Before deciding whether to remove the
registered APP code, the Commissioner must:
(a) consult any person the
Commissioner considers appropriate about the proposed removal; and
(b) consider the extent to which
members of the public have been given an opportunity to comment on the proposed
removal.
(4) In deciding whether to remove the
registered APP code, the Commissioner may consider the matters specified in any
relevant guidelines made under section 26V.
Division 3—Registered CR
code
Subdivision A—Compliance with the registered CR code
26L
Entities to comply with the registered CR code if bound by the code
If an entity is bound by the registered
CR code, the entity must not do an act, or engage in a practice, that breaches
the code.
Note: There must always be one, and only one,
registered CR code at all times after this Part commences: see subsection 26S(4).
26M
What is the registered CR code
(1) The registered CR code is
the CR code that is included on the Codes Register.
(2) The registered CR code is a legislative
instrument.
(3) Despite subsection 12(2) of the Legislative
Instruments Act 2003, the registered CR code may be expressed to take
effect before the date it is registered under that Act.
26N
What is a CR code
(1) A CR code is a written code
of practice about credit reporting.
(2) A CR code must:
(a) set out how one or more of the
provisions of Part IIIA are to be applied or complied with; and
(b) make provision for, or in relation
to, matters required or permitted by Part IIIA to be provided for by the
registered CR code; and
(c) bind all credit reporting bodies;
and
(d) specify the credit providers that
are bound by the code, or a way of determining which credit providers are
bound; and
(e) specify any other entities subject
to Part IIIA that are bound by the code, or a way of determining which of
those entities are bound.
(3) A CR code may do one or more of the
following:
(a) impose additional requirements to
those imposed by Part IIIA, so long as the additional requirements are not
contrary to, or inconsistent with, that Part;
(b) deal with the internal handling of
complaints;
(c) provide for the reporting to the
Commissioner about complaints;
(d) deal with any other relevant
matters.
(4) A CR code may be expressed to apply
differently in relation to:
(a) classes of entities that are
subject to Part IIIA; and
(b) specified classes of credit
information, credit reporting information or credit eligibility information;
and
(c) specified classes of activities of
entities that are subject to Part IIIA.
(5) A CR code is not a legislative
instrument.
Subdivision B—Development and registration of CR code
26P
Development of CR code by CR code developers
(1) The Commissioner may, in writing, request
a CR code developer to develop a CR code and apply to the Commissioner for the
code to be registered.
(2) The request must:
(a) specify the period within which
the request must be complied with; and
(b) set out the effect of section 26L.
(3) The period:
(a) must run for at least 120 days
from the date the request is made; and
(b) may be extended by the
Commissioner.
(4) The request may:
(a) specify one or more matters that
the CR code must deal with; and
(b) specify the credit providers, or a
class of credit providers, that should be bound by the code; and
(c) specify the other entities, or a
class of other entities, subject to Part IIIA that should be bound by the
code.
(5) The Commissioner must make a copy of the
request publicly available as soon as practicable after the request is made.
26Q
Application for registration of CR code
(1) If a CR code developer develops a CR
code, the developer may apply to the Commissioner for registration of the code.
(2) Before making the application, the CR
code developer must:
(a) make a draft of the CR code
publicly available; and
(b) invite the public to make
submissions to the developer about the draft within a specified period (which
must run for at least 28 days); and
(c) give consideration to any
submissions made within the specified period.
(3) The application must:
(a) be made in the form and manner
specified by the Commissioner; and
(b) be accompanied by such information
as is specified by the Commissioner.
(4) The CR code developer may vary the CR
code at any time before the Commissioner registers the code, but only with the
consent of the Commissioner.
26R
Development of CR code by the Commissioner
(1) The Commissioner may develop a CR code if
the Commissioner made a request under section 26P and either:
(a) the request has not been complied
with; or
(b) the request has been complied with
but the Commissioner has decided not to register, under section 26S, the
CR code that was developed as requested.
(2) Before registering the CR code under
section 26S, the Commissioner must:
(a) make a draft of the code publicly
available; and
(b) invite the public to make
submissions to the Commissioner about the draft within a specified period
(which must run for at least 28 days); and
(c) give consideration to any
submissions made within the specified period.
26S
Commissioner may register CR code
(1) If:
(a) an application for registration of
a CR code is made under section 26Q; or
(b) the Commissioner develops a CR
code under section 26R;
the Commissioner may register the code by including it on
the Codes Register.
(2) In deciding whether to register the CR
code, the Commissioner may:
(a) consult any person the
Commissioner considers appropriate; and
(b) consider the matters specified in
any guidelines made under section 26V.
(3) If the Commissioner decides not to
register a CR code developed by a CR code developer, the Commissioner must give
written notice of the decision to the developer, including reasons for the
decision.
(4) The Commissioner must ensure that there
is one, and only one, registered CR code at all times after this Part
commences.
Subdivision C—Variation of the registered CR code
26T
Variation of the registered CR code
(1) The Commissioner may, in writing, approve
a variation of the registered CR code:
(a) on his or her own initiative; or
(b) on application by an entity that
is bound by the code; or
(c) on application by a body or
association representing one or more of the entities that are bound by the
code.
(2) An application under paragraph (1)(b)
or (c) must:
(a) be made in the form and manner
specified by the Commissioner; and
(b) be accompanied by such information
as is specified by the Commissioner.
(3) Before deciding whether to approve a
variation, the Commissioner must:
(a) make a draft of the variation
publicly available; and
(b) consult any person the
Commissioner considers appropriate about the variation; and
(c) consider the extent to which members
of the public have been given an opportunity to comment on the variation.
(4) In deciding whether to approve a
variation, the Commissioner may consider the matters specified in any relevant
guidelines made under section 26V.
(5) If the Commissioner approves a variation
of the registered CR code (the original code), the Commissioner
must:
(a) remove the original code from the
Codes Register; and
(b) register the CR code, as varied,
by including it on the Register.
(6) If the Commissioner approves a variation,
the variation comes into effect on the day specified in the approval, which
must not be before the day on which the CR code, as varied, is included on the
Codes Register.
(7) An approval is not a legislative
instrument.
Note: The CR code, as varied, is a legislative
instrument once it is included on the Codes Register: see section 26M.
Division 4—General matters
26U
Codes Register
(1) The Commissioner must keep a register
(the Codes Register) which includes:
(a) the APP codes the Commissioner has
decided to register under section 26H; and
(b) the APP codes the Commissioner
must register under section 26J; and
(c) the CR code the Commissioner has
decided to register under section 26S; and
(d) the CR code the Commissioner must
register under section 26T.
(2) Despite subsection (1), the
Commissioner is not required to include on the Codes Register:
(a) an APP code removed from the
Register under section 26J or 26K; or
(b) the CR code removed from the
Register under section 26T.
(3) The Commissioner must make the Codes
Register available on the Commissioner’s website.
(4) The Commissioner may charge fees for
providing copies of, or extracts from, the Codes Register.
26V
Guidelines relating to codes
(1) The Commissioner may make written
guidelines:
(a) to assist APP code developers to
develop APP codes; or
(b) to assist APP entities bound by
registered APP codes to apply or comply with the codes; or
(c) to assist CR code developers to
develop a CR code; or
(d) to assist entities bound by the
registered CR code to apply or comply with the code.
(2) The Commissioner may make written
guidelines about matters the Commissioner may consider in deciding whether:
(a) to register an APP code or a CR
code; or
(b) to approve a variation of a
registered APP code or the registered CR code; or
(c) to remove a registered APP code
from the Codes Register.
(3) The Commissioner may publish any such
guidelines on the Commissioner’s website.
(4) Guidelines are not a legislative
instrument.
26W
Review of operation of registered codes
(1) The Commissioner may review the operation
of a registered APP code.
Note: The review may inform a decision by the
Commissioner to approve a variation of a registered APP code or to remove a
registered APP code from the Codes Register.
(2) The Commissioner may review the operation
of the registered CR code.
Note: The review may inform a decision by the
Commissioner to approve a variation of the registered CR code.
Part IV—Functions of the
Information Commissioner
Division 2—Functions of Commissioner
27
Functions of the Commissioner
(1) The Commissioner has the following
functions:
(a) the functions that are conferred
on the Commissioner by or under:
(i) this Act; or
(ii) any other law of the Commonwealth;
(b) the guidance related functions;
(c) the monitoring related functions;
(d) the advice related functions;
(e) to do anything incidental or
conducive to the performance of any of the above functions.
(2) The Commissioner has power to do all
things necessary or convenient to be done for, or in connection with, the
performance of the Commissioner’s functions.
(3) Without limiting subsection (2), the
Commissioner may establish a panel of persons with expertise in relation to a
particular matter to assist the Commissioner in performing any of the
Commissioner’s functions.
(4) Section 38 of the Healthcare
Identifiers Act 2010, rather than section 12B of this Act, applies in
relation to an investigation of an act or practice referred to in subsection 29(1)
of that Act in the same way as it applies to Parts 3 and 4 of that Act.
Note: Section 38 of the Healthcare
Identifiers Act 2010 deals with the additional effect of Parts 3 and 4
of that Act.
28 Guidance
related functions of the Commissioner
(1) The following are the guidance
related functions of the Commissioner:
(a) making guidelines for the
avoidance of acts or practices that may or might be interferences with the
privacy of individuals, or which may otherwise have any adverse effects on the
privacy of individuals;
(b) making, by legislative instrument,
guidelines for the purposes of paragraph (d) of Australian Privacy
Principle 6.3;
(c) promoting an understanding and
acceptance of:
(i) the Australian Privacy
Principles and the objects of those principles; and
(ii) a registered APP code;
and
(iii) the provisions of
Part IIIA and the objects of those provisions; and
(iv) the registered CR code;
(d) undertaking educational programs
for the purposes of promoting the protection of individual privacy.
(2) The Commissioner may publish the
guidelines referred to in paragraphs (1)(a) and (b) in such manner as the
Commissioner considers appropriate.
(3) The educational programs referred to in paragraph (1)(d)
may be undertaken by:
(a) the Commissioner; or
(b) a person or authority acting on
behalf of the Commissioner.
(4) Guidelines made under paragraph (1)(a)
are not a legislative instrument.
28A Monitoring
related functions of the Commissioner
Credit reporting and tax file number information
(1) The following are the monitoring
related functions of the Commissioner:
(a) monitoring the security and
accuracy of information held by an entity that is information to which
Part IIIA applies;
(b) examining the records of entities
to ensure that the entities:
(i) are not using
information to which Part IIIA applies for unauthorised purposes; and
(ii) are taking adequate
measures to prevent the unlawful disclosure of such information;
(c) examining the records of the
Commissioner of Taxation to ensure that the Commissioner:
(i) is not using tax file
number information for purposes beyond his or her powers; and
(ii) is taking adequate
measures to prevent the unlawful disclosure of the tax file number information
that he or she holds;
(d) evaluating compliance with the
rules issued under section 17;
(e) monitoring the security and
accuracy of tax file number information kept by file number recipients.
Other matters
(2) The following are also the monitoring
related functions of the Commissioner:
(a) examining a proposed enactment
that would require or authorise acts or practices of an entity that might
otherwise be interferences with the privacy of individuals, or which may
otherwise have any adverse effects on the privacy of individuals;
(b) examining a proposal for data
matching or linkage that may involve an interference with the privacy of
individuals, or which may otherwise have any adverse effects on the privacy of
individuals;
(c) ensuring that any adverse effects
of the proposed enactment or the proposal on the privacy of individuals are
minimised;
(d) undertaking research into, and
monitoring developments in, data processing and technology (including data
matching and linkage) to ensure that any adverse effects of such developments
on the privacy of individuals are minimised;
(e) reporting to the Minister the
results of that research and monitoring;
(f) monitoring and reporting on the
adequacy of equipment and user safeguards.
(3) The functions referred to in paragraphs (2)(a)
and (b) may be performed by the Commissioner:
(a) on request by a Minister or
Norfolk Island Minister; or
(b) on the Commissioner’s own
initiative.
(4) If the reporting referred to in paragraph (2)(e)
or (f) is done in writing, the instrument is not a legislative instrument.
28B Advice
related functions of the Commissioner
(1) The following are the advice
related functions of the Commissioner:
(a) providing advice to a Minister,
Norfolk Island Minister or entity about any matter relevant to the operation of
this Act;
(b) informing the Minister of action
that needs to be taken by an agency in order to comply with the Australian
Privacy Principles;
(c) providing reports and
recommendations to the Minister in relation to any matter concerning the need
for, or the desirability of, legislative or administrative action in the
interests of the privacy of individuals;
(d) providing advice to file number
recipients about:
(i) their obligations
under the Taxation Administration Act 1953 in relation to the
confidentiality of tax file number information; or
(ii) any matter relevant to
the operation of this Act.
(2) The functions referred to in paragraphs (1)(a),
(c) and (d) may be performed by the Commissioner on request or on the
Commissioner’s own initiative.
(3) The Commissioner may perform the function
referred to in paragraph (1)(b) whenever the Commissioners think it is
necessary to do so.
(4) If the Minister is informed under paragraph (1)(b)
in writing, or the report referred to in paragraph (1)(c) is provided in
writing, the instrument is not a legislative instrument.
29
Commissioner must have due regard to the objects of the Act
The Commissioner must have due regard to
the objects of this Act in performing the Commissioner’s functions, and
exercising the Commissioner’s powers, conferred by this Act.
Note: The objects of this Act are set out in section 2A.
Division 3—Reports by
Commissioner
30
Reports following investigation of act or practice
(1) Where the Commissioner has investigated
an act or practice without a complaint having been made under section 36,
the Commissioner may report to the Minister about the act or practice, and
shall do so:
(a) if so directed by the Minister; or
(b) if the Commissioner:
(i) thinks that the act or
practice is an interference with the privacy of an individual; and
(ii) does not consider that
it is reasonably possible that the matter that gave rise to the investigation
can be conciliated successfully or has attempted to conciliate the matter
without success.
(2) Where the Commissioner reports under subsection (1)
about an act done in accordance with a practice, the Commissioner shall also
report to the Minister about the practice.
(3) Where, after an investigation of an act
or practice of an agency, file number recipient, credit reporting body or
credit provider that is an interference with the privacy of an individual under
subsection 13(1), (2) or (4), the Commissioner is required by virtue of paragraph (1)(b)
of this section to report to the Minister about the act or practice, the
Commissioner:
(a) shall set out in the report his or
her findings and the reasons for those findings;
(b) may include in the report any
recommendations by the Commissioner for preventing a repetition of the act or a
continuation of the practice;
(c) may include in the report any
recommendation by the Commissioner for either or both of the following:
(i) the payment of
compensation in respect of a person who has suffered loss or damage as a result
of the act or practice;
(ii) the taking of other
action to remedy or reduce loss or damage suffered by a person as a result of
the act or practice;
(d) shall serve a copy of the report
on the agency, file number recipient, credit reporting body or credit provider
concerned and the Minister (if any) or Norfolk Island Minister (if any) responsible
for the agency, recipient, credit reporting body or credit provider; and
(e) may serve a copy of the report on
any person affected by the act or practice.
(4) Where, at the end of 60 days after a copy
of a report about an act or practice of an agency, file number recipient, credit
reporting body or credit provider was served under subsection (3), the
Commissioner:
(a) still thinks that the act or
practice is an interference with the privacy of an individual; and
(b) is not satisfied that reasonable
steps have been taken to prevent a repetition of the act or a continuation of
the practice;
the Commissioner shall give to the Minister a further
report that:
(c) incorporates the first‑mentioned
report and any document that the Commissioner has received, in response to the
first‑mentioned report, from the agency, file number recipient, credit
reporting body or credit provider;
(d) states whether, to the knowledge
of the Commissioner, any action has been taken as a result of the findings, and
recommendations (if any), set out in the first‑mentioned report and, if so, the
nature of that action; and
(e) states why the Commissioner is not
satisfied that reasonable steps have been taken to prevent a repetition of the
act or a continuation of the practice;
and shall serve a copy of the report on the Minister (if
any) or Norfolk Island Minister (if any) responsible for the agency, recipient,
credit reporting body or credit provider.
(5) The Minister shall cause a copy of a
report given to the Minister under subsection (4) to be laid before each
House of the Parliament within 15 sitting days of that House after the report
is received by the Minister.
31
Report following examination of proposed enactment
(1) Where the Commissioner has examined a
proposed enactment under paragraph 28A(2)(a), subsections (2) and (3)
of this section have effect.
(2) If the Commissioner thinks that the
proposed enactment would require or authorise acts or practices of an entity
that would be interferences with the privacy of individuals, the Commissioner
shall:
(a) report to the Minister about the
proposed enactment; and
(b) include in the report any
recommendations he or she wishes to make for amendment of the proposed
enactment to ensure that it would not require or authorise such acts or
practices.
(3) Otherwise, the Commissioner may report to
the Minister about the proposed enactment, and shall do so if so directed by
the Minister.
(4) Where the Commissioner is of the belief
that it is in the public interest that the proposed enactment should be the
subject of a further report, the Commissioner may give to the Minister a
further report setting out the Commissioner’s reasons for so doing.
(5) The Minister shall cause a copy of a
report given under subsection (4) to be laid before each House of the
Parliament as soon as practicable, and no later than 15 sitting days of that
House, after the report is received by the Minister.
32
Commissioner may report to the Minister if the Commissioner has monitored
certain activities etc.
(1) If the Commissioner has:
(a) monitored an activity in the
performance of a function under paragraph 28(1)(d), 28A(1)(a), (b), (d) or
(e) or (2)(b), (c) or (d) or 28B(1)(b) or (c); or
(b) conducted an assessment under
section 33C;
the Commissioner may report to the Minister about the
activity or assessment, and must do so if so directed by the Minister.
(2) Where the Commissioner is of the belief
that it is in the public interest that the activity or assessment should be the
subject of a further report, the Commissioner may give to the Minister a
further report setting out the Commissioner’s reasons for so doing.
(3) The Minister shall cause a copy of a
report given under subsection (2) to be laid before each House of the
Parliament as soon as practicable, and no later than 15 sitting days of that
House, after the report is received by the Minister.
33
Exclusion of certain matters from reports
(1) In setting out findings, opinions and
reasons in a report to be given under section 30, 31 or 32, the
Commissioner may exclude a matter if the Commissioner considers it desirable to
do so having regard to the obligations of the Commissioner under subsections (2)
and (3).
(2) In deciding under subsection (1)
whether or not to exclude matter from a report, the Commissioner shall have
regard to the need to prevent:
(a) prejudice to the security, defence
or international relations of Australia;
(b) prejudice to relations between the
Commonwealth Government and the Government of a State or between the Government
of a State and the Government of another State;
(c) the disclosure of deliberations or
decisions of the Cabinet, or of a Committee of the Cabinet, of the Commonwealth
or of a State;
(d) the disclosure of deliberations or
advice of the Federal Executive Council or the Executive Council of a State;
(da) the disclosure of the deliberations
or decisions of the Australian Capital Territory Executive or of a committee of
that Executive;
(e) the disclosure, or the
ascertaining by a person, of the existence or identity of a confidential source
of information in relation to the enforcement of the criminal law;
(f) the
endangering of the life or safety of any person;
(g) prejudice to the proper
enforcement of the law or the protection of public safety;
(h) the disclosure of information the
disclosure of which is prohibited, absolutely or subject to qualifications, by
or under another enactment;
(j) the unreasonable disclosure of
the personal affairs of any person; and
(k) the unreasonable disclosure of
confidential commercial information.
(3) The Commissioner shall try to achieve an
appropriate balance between meeting the need referred to in subsection (2)
and the desirability of ensuring that interested persons are sufficiently
informed of the results of the Commissioner’s investigation, examination or
monitoring.
(4) Where the Commissioner excludes a matter
from a report, he or she shall give to the Minister a report setting out the
excluded matter and his or her reasons for excluding the matter.
Norfolk Island
(5) In this section:
State includes Norfolk Island.
33B
Copies of certain reports to be given to the Norfolk Island Justice Minister
(1) If:
(a) the Commissioner gives a report to
the Minister under section 30, 31 or 32; and
(b) the report relates to a Norfolk
Island matter;
the Commissioner must, at the same time, give a copy of
the report to the Norfolk Island Justice Minister.
(2) For the purposes of this section, a
report relates to a Norfolk Island matter if:
(a) in the case of a report under
section 30—the report relates to an act or practice of a Norfolk Island
agency; or
(b) in the case of a report under
section 31—the report relates to a proposed Norfolk Island enactment; or
(c) in the case of a report under
section 32—the report relates to an activity or audit of a Norfolk Island
agency.
Division 3A—Assessments by,
or at the direction of, the Commissioner
33C
Commissioner may conduct an assessment relating to the Australian Privacy
Principles etc.
(1) The Commissioner may conduct an
assessment of the following matters:
(a) whether personal information held
by an APP entity is being maintained and handled in accordance with the following:
(i) the Australian Privacy
Principles;
(ii) a registered APP code
that binds the entity;
(b) whether information held by an
entity is being maintained and handled in accordance with the following to the
extent that they apply to the information:
(i) the provisions of
Part IIIA;
(ii) the registered CR code
if it binds the entity;
(c) whether tax file number
information held by a file number recipient is being maintained and handled in
accordance with any relevant rules issued under section 17;
(d) whether the data matching program
(within the meaning of the Data‑matching Program (Assistance and Tax) Act
1990) of an agency complies with Part 2 of that Act and the rules
issued under section 12 of that Act;
(e) whether information to which
section 135AA of the National Health Act 1953 applies is being
maintained and handled in accordance with the rules issued under that section.
(2) The Commissioner may conduct the
assessment in such manner as the Commissioner considers fit.
33D
Commissioner may direct an agency to give a privacy impact assessment
(1) If:
(a) an agency proposes to engage in an
activity or function involving the handling of
personal information about individuals; and
(b) the Commissioner considers that
the activity or function might have a significant impact on the privacy of
individuals;
the Commissioner may, in writing, direct the agency to
give the Commissioner, within a specified period, a privacy impact assessment
about the activity or function.
(2) A direction under subsection (1) is
not a legislative instrument.
Privacy impact assessment
(3) A privacy impact assessment
is a written assessment of an activity or function that:
(a) identifies the impact that the
activity or function might have on the privacy of individuals; and
(b) sets out recommendations for
managing, minimising or eliminating that impact.
(4) Subsection (3) does not limit the
matters that the privacy impact assessment may deal with.
(5) A privacy impact assessment is not a
legislative instrument.
Failure to comply with a direction
(6) If an agency does not comply with a
direction under subsection (1), the Commissioner must advise both of the
following of the failure:
(a) the Minister;
(b) if another Minister is responsible
for the agency—that other Minister.
Review
(7) Before the fifth anniversary of the
commencement of this section, the Minister must cause a review to be undertaken
of whether this section should apply in relation to organisations.
Division 3B—Enforceable
undertakings
33E
Commissioner may accept undertakings
(1) The Commissioner may accept any of the
following undertakings:
(a) a written undertaking given by an
entity that the entity will, in order to comply with this Act, take specified
action;
(b) a written undertaking given by an
entity that the entity will, in order to comply with this Act, refrain from
taking specified action;
(c) a written undertaking given by an
entity that the entity will take specified action directed towards ensuring
that the entity does not do an act, or engage in a practice, in the future that
interferes with the privacy of an individual.
(2) The undertaking must be expressed to be
an undertaking under this section.
(3) The entity may withdraw or vary the
undertaking at any time, but only with the consent of the Commissioner.
(4) The Commissioner may, by written notice
given to the entity, cancel the undertaking.
(5) The Commissioner may publish the
undertaking on the Commissioner’s website.
33F
Enforcement of undertakings
(1) If:
(a) an entity gives an undertaking
under section 33E; and
(b) the undertaking has not been
withdrawn or cancelled; and
(c) the Commissioner considers that
the entity has breached the undertaking;
the Commissioner may apply to the Federal Court or Federal
Circuit Court for an order under subsection (2).
(2) If the court is satisfied that the entity
has breached the undertaking, the court may make any or all of the following
orders:
(a) an order directing the entity to
comply with the undertaking;
(b) any order that the court considers
appropriate directing the person to compensate any other person who has
suffered loss or damage as a result of the breach;
(c) any other order that the court
considers appropriate.
Division 4—Miscellaneous
34
Provisions relating to documents exempt under the Freedom of Information Act
1982
(1) The Commissioner shall not, in connection
with the performance of the Commissioner’s functions, give to a person
information as to the existence or non‑existence of a document where information
as to the existence or non‑existence of that document would, if included in a
document of an agency, cause the last‑mentioned document to be:
(a) an exempt document by virtue of
section 33 or subsection 37(1) or 45A(1) of the Freedom of Information
Act 1982; or
(b) an exempt document to the extent
referred to in subsection 45A(2) or (3) of that Act.
(2) The Commissioner shall not, in connection
with the performance of the Commissioner’s functions, give to a person
information:
(a) about the contents of a document
of an agency, or the contents of an official document of a Minister or a
Norfolk Island Minister, being a document that is an exempt document; or
(b) about exempt matter contained in a
document of an agency or in an official document of a Minister or a Norfolk
Island Minister.
(3) An expression used in this section and in
the Freedom of Information Act 1982 has the same meaning in this section
as in that Act.
35
Direction where refusal or failure to amend exempt document
(1) Where:
(a) an application made under
subsection 55(1) of the Freedom of Information Act 1982 for review
of a decision under that Act refusing access to a document has been finally
determined or otherwise disposed of;
(b) the period within which an appeal
may be made to the Federal Court has expired or, if such an appeal has been
instituted, the appeal has been determined;
(c) the effect of the review and any
appeal is that access is not to be given to the document;
(d) the applicant has requested the
agency concerned to amend the document;
(e) the applicant has complained to
the Commissioner under this Act about the refusal or failure of the agency to
amend the document;
(f) the Commissioner has, as a result
of the complaint, recommended under subsection 30(3) of this Act that the
agency amend the document, or amend a part of the document, to which the
applicant has been refused access; and
(g) as at the end of 60 days after a
copy of the report containing the recommendation was served on the agency, the
Commissioner:
(i) still thinks that the
agency should amend the document in a particular manner; and
(ii) is not satisfied that
the agency has amended the document in that manner;
the Commissioner may direct the agency to add to the
document an appropriate notation setting out particulars of the amendments of
the document that the Commissioner thinks should be made.
(2) An agency shall comply with a direction
given in accordance with subsection (1).
(3) In subsection (1), amend,
in relation to a document, means amend by making a correction, deletion or
addition.
(4) An expression used in this section and in
the Freedom of Information Act 1982 has the same meaning in this section
as in that Act.
35A
Commissioner may recognise external dispute resolution schemes
(1) The Commissioner may, by written notice,
recognise an external dispute resolution scheme:
(a) for an entity or a class of
entities; or
(b) for a specified purpose.
(2) In considering whether to recognise an
external dispute resolution scheme, the Commissioner must take the following
matters into account:
(a) the accessibility of the scheme;
(b) the independence of the scheme;
(c) the fairness of the scheme;
(d) the accountability of the scheme;
(e) the efficiency of the scheme;
(f) the effectiveness of the scheme;
(g) any other matter the Commissioner
considers relevant.
(3) The Commissioner may:
(a) specify a period for which the
recognition of an external dispute resolution scheme is in force; and
(b) make the recognition of an
external dispute resolution scheme subject to specified conditions, including
conditions relating to the conduct of an independent review of the operation of
the scheme; and
(c) vary or revoke:
(i) the recognition of an
external dispute resolution scheme; or
(ii) the period for which
the recognition is in force; or
(iii) a condition to which
the recognition is subject.
(4) A notice under subsection (1) is not
a legislative instrument.
Part V—Investigations
etc.
Division 1A—Introduction
36A
Guide to this Part
In general, this Part deals with
complaints and investigations about acts or practices that may be an
interference with the privacy of an individual.
An individual may complain to the
Commissioner about an act or practice that may be an interference with the
privacy of the individual. If a complaint is made, the Commissioner is required
to investigate the act or practice except in certain circumstances.
The Commissioner may also, on his or
her own initiative, investigate an act or practice that may be an interference
with the privacy of an individual or a breach of Australian Privacy Principle 1.
The Commissioner has a range powers
relating to the conduct of investigations including powers:
(a) to
conciliate complaints; and
(b) to make
preliminary inquiries of any person; and
(c) to require a
person to give information or documents, or to attend a compulsory conference;
and
(d) to transfer
matters to an alternative complaint body in certain circumstances.
After an
investigation, the Commissioner may make a determination in relation to the
investigation. An entity to which a determination relates must comply with
certain declarations included in the determination. Court proceedings may be
commenced to enforce a determination.
Division 1—Investigation of
complaints and investigations on the Commissioner’s initiative
36
Complaints
(1) An individual may complain to the
Commissioner about an act or practice that may be an interference with the
privacy of the individual.
(2) In the case of an act or practice that
may be an interference with the privacy of 2 or more individuals, any one of
those individuals may make a complaint under subsection (1) on behalf of
all of the individuals.
(2A) In the case of a representative complaint,
this section has effect subject to section 38.
(3) A complaint shall be in writing.
(4) It is the duty of:
(a) members of the staff of the
Commissioner; and
(b) members of the staff of the
Ombudsman who have had powers of the Commissioner delegated to them under
section 99;
to provide appropriate assistance to a person who wishes
to make a complaint and requires assistance to formulate the complaint.
(5) The complaint shall specify the
respondent to the complaint.
(6) In the case of a complaint about an act or
practice of an agency:
(a) if the agency is an individual or
a body corporate, the agency shall be the respondent; and
(b) if the agency is an unincorporated
body, the principal executive of the agency shall be the respondent.
(7) In the case of a complaint about an act
or practice of an organisation, the organisation is the respondent.
Note: Sections 98A to 98C contain further rules
about how this Part operates in relation to respondent organisations that are
not legal persons.
(8) The respondent to a complaint about an
act or practice described in subsection 13(2), (4) or (5), other than an
act or practice of an agency or organisation, is the person or entity who
engaged in the act or practice.
37
Principal executive of agency
The
principal executive of an agency of a kind specified in column 1 of an item in
the following table is the person specified in column 2 of the item:
|
Item
|
Column 1
Agency
|
Column 2
Principal executive
|
|
1
|
Department
|
The Secretary of the Department
|
|
2
|
An unincorporated body, or a tribunal, referred to in paragraph (c)
of the definition of agency in subsection 6(1)
|
The chief executive officer of the body or tribunal
|
|
3
|
A body referred to in paragraph (d) of the definition
of agency in subsection 6(1)
|
The chief executive officer of the body
|
|
4
|
A federal court
|
The registrar or principal registrar of the court or the
person occupying an equivalent office
|
|
5
|
The Australian Federal Police
|
The Commissioner of Police
|
|
5A
|
A public sector agency (within the meaning of the Public
Sector Management Act 2000 of Norfolk Island)
|
The Chief Executive Officer (within the meaning of the Public
Sector Management Act 2000 of Norfolk Island)
|
|
5B
|
An unincorporated body, or a tribunal, referred to in paragraph (c)
of the definition of Norfolk Island agency in subsection 6(1)
|
The Chief Executive Officer (within the meaning of the Public
Sector Management Act 2000 of Norfolk Island)
|
|
5C
|
A body referred to in paragraph (d) of the definition
of Norfolk Island agency in subsection 6(1)
|
The Chief Executive Officer (within the meaning of the Public
Sector Management Act 2000 of Norfolk Island)
|
|
5D
|
A court of Norfolk Island
|
The registrar or principal registrar of the court or the
person occupying an equivalent office
|
|
8
|
The nominated AGHS company
|
The chief executive officer of the company
|
|
9
|
An eligible hearing service provider that is an individual
|
The individual
|
|
10
|
An eligible hearing service
provider that is not an individual
|
The individual primarily
responsible for the management of the eligible hearing service provider
|
38
Conditions for making a representative complaint
(1) A
representative complaint may be lodged under section 36 only if:
(a) the class members have complaints
against the same person or entity; and
(b) all the complaints are in respect
of, or arise out of, the same, similar or related circumstances; and
(c) all the complaints give rise to a
substantial common issue of law or fact.
(2) A representative complaint made under
section 36 must:
(a) describe or otherwise identify the
class members; and
(b) specify the nature of the
complaints made on behalf of the class members; and
(c) specify the nature of the relief
sought; and
(d) specify the questions of law or
fact that are common to the complaints of the class members.
In describing or otherwise identifying the class members,
it is not necessary to name them or specify how many there are.
(3) A representative complaint may be lodged
without the consent of class members.
38A
Commissioner may determine that a complaint is not to continue as a
representative complaint
(1) The Commissioner may, on application by
the respondent or on his or her own initiative, determine that a complaint
should no longer continue as a representative complaint.
(2) The Commissioner may only make such a
determination if the Commissioner is satisfied that it is in the interests of
justice to do so for any of the following reasons:
(a) the costs that would be incurred
if the complaint were to continue as a representative complaint are likely to
exceed the costs that would be incurred if each class member lodged a separate
complaint;
(b) the representative complaint will
not provide an efficient and effective means of dealing with the complaints of
the class members;
(c) the complaint was not brought in
good faith as a representative complaint;
(d) it is otherwise inappropriate that
the complaints be pursued by means of a representative complaint.
(3) If the Commissioner makes such a
determination:
(a) the complaint may be continued as
a complaint by the complainant on his or her own behalf against the respondent;
and
(b) on the application of a person who
was a class member for the purposes of the former representative complaint, the
Commissioner may join that person as a complainant to the complaint as
continued under paragraph (a).
38B
Additional rules applying to the determination of representative complaints
(1) The Commissioner may, on application by a
class member, replace the complainant with another class member, where it
appears to the Commissioner that the complainant is not able adequately to
represent the interests of the class members.
(2) A class member may, by notice in writing
to the Commissioner, withdraw from a representative complaint:
(a) if the complaint was lodged
without the consent of the member—at any time; or
(b) otherwise—at any time before the
Commissioner begins to hold an inquiry into the complaint.
Note: If a class member withdraws from a
representative complaint that relates to a matter, the former member may make a
complaint under section 36 that relates to the matter.
(3) The Commissioner may at any stage direct
that notice of any matter be given to a class member or class members.
38C
Amendment of representative complaints
If the Commissioner is satisfied that a
complaint could be dealt with as a representative complaint if the class of
persons on whose behalf the complaint is lodged is increased, reduced or
otherwise altered, the Commissioner may amend the complaint so that the
complaint can be dealt with as a representative complaint.
39
Class member for representative complaint not entitled to lodge individual
complaint
A person who is a class member for a
representative complaint is not entitled to lodge a complaint in respect of the
same subject matter.
40
Investigations
(1) Subject to subsection (1A), the
Commissioner shall investigate an act or practice if:
(a) the act or practice may be an
interference with the privacy of an individual; and
(b) a complaint about the act or
practice has been made under section 36.
(1A) The Commissioner must not investigate a
complaint if the complainant did not complain to the respondent before making
the complaint to the Commissioner under section 36. However, the
Commissioner may decide to investigate the complaint if he or she considers
that it was not appropriate for the complainant to complain to the respondent.
(1B) Subsection (1A) does not apply if the
complaint is about an act or practice that may breach:
(a) section 20R, 20T, 21T or 21V
(which are about access to, and correction of, credit reporting information
etc.); or
(b) a provision of the registered CR
code that relates to that section.
(2) The Commissioner may, on the
Commissioner’s own initiative, investigate an act or practice if:
(a) the act or practice may be an
interference with the privacy of an individual or a breach of Australian
Privacy Principle 1; and
(b) the Commissioner thinks it is
desirable that the act or practice be investigated.
(3) This section has effect subject to
section 41.
40A
Conciliation of complaints
(1) If:
(a) a complaint about an act or
practice is made under section 36; and
(b) the Commissioner considers it is
reasonably possible that the complaint may be conciliated successfully;
the Commissioner must make a reasonable attempt to
conciliate the complaint.
(2) Subsection (1) does not apply if the
Commissioner has decided under section 41 or 50 not to investigate, or not
to investigate further, the act or practice.
(3) If the Commissioner is satisfied that
there is no reasonable likelihood that the complaint will be resolved by
conciliation, the Commissioner must, in writing, notify the complainant
and respondent of that matter.
(4) If a notification is given under subsection (3),
the Commissioner may decide not to investigate, or not to investigate further,
the act or practice.
(5) Evidence of anything said or done in the
course of the conciliation is not admissible in any hearing before the
Commissioner, or in any legal proceedings, relating to complaint or the act or
practice unless:
(a) the complainant and respondent
otherwise agree; or
(b) the thing was said or done in
furtherance of the commission of a fraud or an offence, or the commission of an
act that renders a person liable to a civil penalty.
41
Commissioner may or must decide not to investigate etc. in certain
circumstances
(1) The Commissioner may decide not to
investigate, or not to investigate further, an act or practice about which a
complaint has been made under section 36 if the Commissioner is satisfied
that:
(a) the act or practice is not an
interference with the privacy of an individual; or
(c) the complaint was made more than
12 months after the complainant became aware of the act or practice; or
(d) the complaint is frivolous,
vexatious, misconceived, lacking in substance or not made in good faith; or
(da) an investigation, or further
investigation, of the act or practice is not warranted having regard to all the
circumstances; or
(db) the complainant has not responded,
within the period specified by the Commissioner, to a request for information
in relation to the complaint; or
(dc) the act or practice is being dealt
with by a recognised external dispute resolution scheme; or
(dd) the act or practice would be more
effectively or appropriately dealt with by a recognised external dispute
resolution scheme; or
(e) the act or practice is the subject
of an application under another Commonwealth law, or a State or Territory law,
and the subject‑matter of the complaint has been, or is being, dealt with
adequately under that law; or
(f) another Commonwealth law, or a
State or Territory law, provides a more appropriate remedy for the act or
practice that is the subject of the complaint.
(1A) The Commissioner must not investigate, or
investigate further, an act or practice about which a complaint has been made
under section 36 if the Commissioner is satisfied that the complainant has
withdrawn the complaint.
(2) The Commissioner may decide not to
investigate, or not to investigate further, an act or practice about which a
complaint has been made under section 36 if the Commissioner is satisfied
that the complainant has complained to the respondent about the act or practice
and either:
(a) the respondent has dealt, or is
dealing, adequately with the complaint; or
(b) the respondent has not yet had an
adequate opportunity to deal with the complaint.
(3) The Commissioner may defer the
investigation or further investigation of an act or practice about which a
complaint has been made under section 36 if:
(a) an application has been made by
the respondent for a determination under section 72 in relation to the act
or practice; and
(b) the
Commissioner is satisfied that the interests of persons affected by the act or
practice would not be unreasonably prejudiced if the investigation or further
investigation were deferred until the application had been disposed of.
42
Preliminary inquiries
(1) Where a complaint has been made to the
Commissioner, the Commissioner may, for the purpose of determining:
(a) whether the Commissioner has power
to investigate the matter to which the complaint relates; or
(b) whether the Commissioner may, in
his or her discretion, decide not to investigate the matter;
make inquiries of the respondent or any other person.
(2) The Commissioner may make inquiries of
any person for the purpose of determining whether to investigate an act or
practice under subsection 40(2).
43
Conduct of investigations
(1) Before commencing an investigation of a
matter to which a complaint relates, the Commissioner shall inform the
respondent that the matter is to be investigated.
(1AA) Before commencing an investigation of an act
or practice of a person or entity under subsection 40(2), the Commissioner
must inform the person or entity that the act or practice is to be
investigated.
(1A) Before starting to investigate an act done,
or practice engaged in, by a contracted service provider for the purpose of
providing (directly or indirectly) a service to an agency under a Commonwealth
contract, the Commissioner must also inform the agency that the act or practice
is to be investigated.
Note: See subsection 6(9) about provision of
services to an agency.
(2) An investigation under this Division shall
be conducted in such manner as the Commissioner thinks fit.
(3) The Commissioner may, for the purposes of
an investigation, obtain information from such persons, and make such
inquiries, as he or she thinks fit.
(4) The Commissioner may make a determination
under section 52 in relation to an investigation under this Division
without holding a hearing, if:
(a) it appears to the Commissioner
that the matter to which the investigation relates can be adequately determined
in the absence of:
(i) in the case of an
investigation under subsection 40(1)—the complainant and respondent; or
(ii) otherwise—the person
or entity that engaged in the act or practice that is being investigated; and
(b) the Commissioner is satisfied that
there are no unusual circumstances that would warrant the Commissioner holding
a hearing; and
(c) an application for a hearing has
not been made under section 43A.
(7) Where, in connection with an investigation
of a matter under this Division, the Commissioner proposes to hold a hearing,
or proposes to make a requirement of a person under section 44, the
Commissioner shall, if he or she has not previously informed the responsible
Minister (if any) or Norfolk Island Minister (if any) that the matter is being
investigated, inform that Minister accordingly.
(8) The Commissioner may, either before or
after the completion of an investigation under this Division, discuss any
matter that is relevant to the investigation with a Minister or a Norfolk
Island Minister concerned with the matter.
(8A) Subsection (8) does not allow the
Commissioner to discuss a matter relevant to an investigation of a breach of the
Australian Privacy Principles or a registered APP code with a Minister or a
Norfolk Island Minister, unless the investigation is of an act done, or
practice engaged in:
(a) by a contracted service provider
for a Commonwealth contract; and
(b) for the purpose of providing a
service to an agency to meet (directly or indirectly) an obligation under the
contract.
(9) Where the Commissioner forms the opinion,
either before or after completing an investigation under this Division, that
there is evidence that an officer of an agency has been guilty of a breach of
duty or of misconduct and that the evidence is, in all the circumstances, of
sufficient force to justify the Commissioner doing so, the Commissioner shall
bring the evidence to the notice of:
(a) an appropriate officer of an
agency; or
(b) if the Commissioner thinks that
there is no officer of an agency to whose notice the evidence may appropriately
be drawn—an appropriate Minister or Norfolk Island Minister.
43A
Interested party may request a hearing
(1) An interested party in relation to an
investigation under this Division may, in writing, request that the
Commissioner hold a hearing before the Commissioner makes a determination under
section 52 in relation to the investigation.
(2) If an interested party makes request
under subsection (1), the Commissioner must:
(a) notify any other interested party
of the request; and
(b) give all interested parties a
reasonable opportunity to make a submission about the request; and
(c) decide whether or not to hold a
hearing.
(3) In this section:
interested party in relation to an
investigation means:
(a) in the case of an investigation
under subsection 40(1)—the complainant or respondent; or
(b) otherwise—the person or entity
that engaged in the act or practice that is being investigated.
44
Power to obtain information and documents
(1) If the Commissioner has reason to believe
that a person has information or a document relevant to an investigation under
this Division, the Commissioner may give to the person a written notice
requiring the person:
(a) to give the information to the
Commissioner in writing signed by the person or, in the case of a body
corporate, by an officer of the body corporate; or
(b) to produce the document to the
Commissioner.
(2) A notice given by the Commissioner under subsection (1)
shall state:
(a) the place at which the information
or document is to be given or produced to the Commissioner; and
(b) the time at which, or the period
within which, the information or document is to be given or produced.
(2A) If documents are produced to the
Commissioner in accordance with a requirement under subsection (1), the
Commissioner:
(a) may take possession of, and may
make copies of, or take extracts from, the documents; and
(b) may retain possession of the
documents for any period that is necessary for the purposes of the
investigation to which the documents relate; and
(c) during that period must permit a
person who would be entitled to inspect any one or more of the documents if
they were not in the Commissioner’s possession to inspect at all reasonable
times any of the documents that the person would be so entitled to inspect.
(3) If the Commissioner has reason to believe
that a person has information relevant to an investigation under this Division,
the Commissioner may give to the person a written notice requiring the person
to attend before the Commissioner at a time and place specified in the notice
to answer questions relevant to the investigation.
(4) This section is subject to section 70
but it has effect regardless of any other enactment.
(5) A person is not liable to a penalty under
the provisions of any other enactment because he or she gives information,
produces a document or answers a question when required to do so under this
Division.
45
Power to examine witnesses
(1) The Commissioner may administer an oath
or affirmation to a person required under section 44 to attend before the
Commissioner and may examine such a person on oath or affirmation.
(2) The oath or affirmation to be taken or
made by a person for the purposes of this section is an oath or affirmation
that the answers the person will give will be true.
46
Directions to persons to attend compulsory conference
(1) For the purposes of performing the
Commissioner’s functions in relation to a complaint, the Commissioner may, by
written notice, direct:
(a) the complainant;
(b) the respondent; and
(c) any other person who, in the
opinion of the Commissioner, is likely to be able to provide information
relevant to the matter to which the complaint relates or whose presence at the
conference is, in the opinion of the Commissioner, likely to assist in
connection with the performance of the Commissioner’s functions in relation to
the complaint;
to attend, at a time and place specified in the notice, a
conference presided over by the Commissioner.
(2) A person who has been directed to attend
a conference and who:
(a) fails to attend as required by the
direction; or
(b) fails to attend from day to day
unless excused, or released from further attendance, by the Commissioner;
is guilty of an offence punishable on conviction:
(c) in the case of an individual—by a
fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months,
or both; or
(d) in the case of a body corporate—by
a fine not exceeding $5,000.
(2A) Subsection (2) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2A) (see subsection 13.3(3) of
the Criminal Code).
(3) A person who has been directed under subsection (1)
to attend a conference is entitled to be paid by the Commonwealth a reasonable
sum for the person’s attendance at the conference.
(4) The Commissioner may, in a notice given
to a person under subsection (1), require the person to produce such
documents at the conference as are specified in the notice.
47
Conduct of compulsory conference
(1) The Commissioner may require a person
attending a conference under this Division to produce a document.
(2) A conference under this Division shall be
held in private and shall be conducted in such manner as the Commissioner
thinks fit.
(3) A body of persons, whether corporate or
unincorporate, that is directed under section 46 to attend a conference
shall be deemed to attend if a member, officer or employee of that body attends
on behalf of that body.
(4) Except with the consent of the
Commissioner:
(a) an individual is not entitled to
be represented at the conference by another person; and
(b) a body of persons, whether
corporate or unincorporate, is not entitled to be represented at the conference
by a person other than a member, officer or employee of that body.
48
Complainant and certain other persons to be informed of various matters
(1) Where the Commissioner decides not to
investigate, or not to investigate further, a matter to which a complaint
relates, the Commissioner shall, as soon as practicable and in such manner as
the Commissioner thinks fit, inform the complainant and the respondent of the
decision and of the reasons for the decision.
(2) If the Commissioner decides not to
investigate (at all or further) an act done, or practice engaged in, by a
contracted service provider for the purpose of providing (directly or
indirectly) a service to an agency under a Commonwealth contract, the
Commissioner must also inform the agency of the decision.
Note: See subsection 6(9) about provision of
services to an agency.
49
Investigation under section 40 to cease if certain offences may have been
committed
(1) Where, in the course of an investigation
under section 40, the Commissioner forms the opinion that a tax file
number offence, a healthcare identifier offence, an AML/CTF verification
offence or a credit reporting offence may have been committed, the Commissioner
shall:
(a) inform the Commissioner of Police
or the Director of Public Prosecutions of that opinion;
(b) in the case of an investigation
under subsection 40(1), give a copy of the complaint to the Commissioner
of Police or the Director of Public Prosecutions, as the case may be; and
(c) subject to subsection (3),
discontinue the investigation except to the extent that it concerns matters
unconnected with the offence that the Commissioner believes may have been
committed.
(2) If, after having been informed of the
Commissioner’s opinion under paragraph (1)(a), the Commissioner of Police
or the Director of Public Prosecutions, as the case may be, decides that the
matter will not be, or will no longer be, the subject of proceedings for an
offence, he or she shall give a written notice to that effect to the
Commissioner.
(3) Upon receiving such a notice the
Commissioner may continue the investigation discontinued under paragraph (1)(c).
(4) In subsection (1):
AML/CTF verification offence (short for anti‑money
laundering and counter‑terrorism financing offence) means an offence
against section 35H, 35J or 35K of the Anti‑Money Laundering and
Counter‑Terrorism Financing Act 2006.
credit reporting offence means:
(a) an offence against subsection 20P(1),
21R(1) or (2), 24(1) or (2) or 24A(1) or (2); or
(b) an offence against section 6
of the Crimes Act 1914, or section 11.1, 11.4 or 11.5 of the Criminal
Code, being an offence that relates to an offence referred to in paragraph (a)
of this definition.
tax file number offence means:
(a) an offence against section 8WA
or 8WB of the Taxation Administration Act 1953; or
(b) an offence against section 6
of the Crimes Act 1914, or section 11.1, 11.4 or 11.5 of the Criminal
Code, being an offence that relates to an offence referred to in paragraph (a)
of this definition.
49A
Investigation under section 40 to cease if civil penalty provision under Personal
Property Securities Act 2009 may have been contravened
(1) If, in the course of an investigation
under section 40, the Commissioner forms the opinion that subsection 172(3)
of the Personal Property Securities Act 2009 (civil penalty for
searching otherwise than for authorised purposes) may have been contravened,
the Commissioner must:
(a) inform the Registrar of Personal
Property Securities under the Personal Property Securities Act 2009 of
that opinion; and
(b) in the case of an investigation
under subsection 40(1), give a copy of the complaint to the Registrar of
Personal Property Securities; and
(c) discontinue the investigation
except to the extent that it concerns matters unconnected with the
contravention that the Commissioner believes may have taken place.
(2) The Registrar of Personal Property
Securities must notify the Commissioner in writing if, after having been
informed of the Commissioner’s opinion under paragraph (1)(a), the
Registrar decides:
(a) not to apply for an order under
section 222 of the Personal Property Securities Act 2009; or
(b) to discontinue a proceeding that
is an application for an order under section 222 of that Act.
(3) Upon receiving a notice under subsection (2),
the Commissioner may continue an investigation discontinued under paragraph (1)(c).
50
Reference of matters to other authorities
(1) In this section:
alternative complaint body means:
(a) the Australian Human Rights
Commission; or
(b) the Ombudsman; or
(c) the Postal Industry Ombudsman; or
(d) the Overseas Students Ombudsman;
or
(e) the Public Service Commissioner;
or
(f) the Norfolk Island Public Service
Board; or
(g) a recognised external dispute
resolution scheme.
Australian Human Rights Commission includes a
person performing functions of that Commission.
Norfolk Island Public Service Board means the
Public Service Board established under the Public Sector Management Act 2000
of Norfolk Island.
Ombudsman means the Commonwealth Ombudsman.
(2) Where, before the Commissioner commences,
or after the Commissioner has commenced, to investigate a matter to which a
complaint relates, the Commissioner forms the opinion that:
(a) a complaint relating to that
matter has been, or could have been, made by the complainant:
(i) to the Australian
Human Rights Commission under Division 3 of Part II of the Australian
Human Rights Commission Act 1986; or
(ii) to the Ombudsman under
the Ombudsman Act 1976; or
(iia) to the Ombudsman under
a particular Norfolk Island enactment; or
(iii) to the Postal Industry
Ombudsman under the Ombudsman Act 1976; or
(iv) to the Overseas
Students Ombudsman under the Ombudsman Act 1976; or
(v) to a recognised
external dispute resolution scheme; or
(b) an application with respect to
that matter has been, or could have been, made by the complainant to the Australian
Public Service Commissioner under the Public Service Act 1999; or
(ba) an application with respect to that
matter has been, or could have been, made by the complainant to the Norfolk
Island Public Service Board under the Public Sector Management Act 2000
of Norfolk Island;
and that that matter could be more conveniently or effectively
dealt with by the Australian Human Rights Commission, the Ombudsman, the Postal
Industry Ombudsman, the Overseas Students Ombudsman or the Australian Public
Service Commissioner, as the case may be, the Commissioner may decide not to investigate
the matter, or not to investigate the matter further, as the case may be, and,
if the Commissioner so decides, he or she shall:
(c) transfer the complaint to the Australian
Human Rights Commission, the Ombudsman, the Postal Industry Ombudsman, the
Overseas Students Ombudsman or the Australian Public Service Commissioner; and
(d) give notice in writing to the
complainant stating that the complaint has been so transferred; and
(e) give to the Australian Human
Rights Commission, the Ombudsman, the Postal Industry Ombudsman, the Overseas
Students Ombudsman or the Australian Public Service Commissioner any
information or documents that relate to the complaint and are in the
possession, or under the control, of the Commissioner.
(3) A complaint transferred under subsection (2)
shall be taken to be:
(a) a complaint made:
(i) to the Australian
Human Rights Commission under Division 3 of Part II of the Australian
Human Rights Commission Act 1986; or
(ii) to the Ombudsman under
the Ombudsman Act 1976; or
(iia) to the Ombudsman under
the Norfolk Island enactment concerned; or
(iii) to the Postal Industry
Ombudsman under the Ombudsman Act 1976; or
(iv) to the Overseas
Students Ombudsman under the Ombudsman Act 1976; or
(v) to the recognised
external dispute resolution scheme; or
(b) an application made to the Australian
Public Service Commissioner under the Public Service Act 1999; or
(c) an application made to the Norfolk
Island Public Service Board under the Public Sector Management Act 2000
of Norfolk Island;
as the case requires.
50A
Substitution of respondent to complaint
(1) This
section lets the Commissioner substitute an agency for an organisation as
respondent to a complaint if:
(a) the
organisation is a contracted service provider for a Commonwealth contract to
provide services to the agency; and
(b) before
the Commissioner makes a determination under section 52 in relation to the
complaint, the organisation:
(i) dies or ceases to
exist; or
(ii) becomes bankrupt or
insolvent, commences to be wound up, applies to take the benefit of a law for
the relief of bankrupt or insolvent debtors, compounds with creditors or makes
an assignment of any property for the benefit of creditors.
(2) The Commissioner may amend the complaint
to specify as a respondent to the complaint the agency or its principal
executive, instead of the organisation.
Note 1: The complaint still relates to the act or
practice of the organisation.
Note 2: The Commissioner may determine under section 53B
that the determination applies in relation to an agency if the organisation has
not complied with the determination.
(3) Before amending the complaint, the
Commissioner must:
(a) give the agency a notice stating
that the Commissioner proposes to amend the complaint and stating the reasons
for the proposal; and
(b) give the agency an opportunity to
appear before the Commissioner and to make oral and/or written submissions
relating to the proposed amendment.
(4) If the Commissioner amends the complaint
after starting to investigate it, the Commissioner is taken to have satisfied
subsection 43(1A) in relation to the agency.
51
Effect of investigation by Auditor‑General
Where the
Commissioner becomes aware that a matter being investigated by the Commissioner
is, or is related to, a matter that is under investigation by the Auditor‑General,
the Commissioner shall not, unless the Commissioner and Auditor‑General agree
to the contrary, continue to investigate the matter until the investigation by
the Auditor‑General has been completed.
Division 2—Determinations
following investigation of complaints
52
Determination of the Commissioner
(1) After
investigating a complaint, the Commissioner may:
(a) make
a determination dismissing the complaint; or
(b) find
the complaint substantiated and make a determination that includes one or more
of the following:
(i) a declaration:
(A) where
the principal executive of an agency is the respondent—that the agency has
engaged in conduct constituting an interference with the privacy of an
individual and must not repeat or continue such conduct; or
(B) in any
other case—that the respondent has engaged in conduct constituting an
interference with the privacy of an individual and must not repeat or continue
such conduct;
(ia) a declaration that the
respondent must take specified steps within a specified period to ensure that
such conduct is not repeated or continued;
(ii) a declaration that the
respondent must perform any reasonable act or course of conduct to redress any
loss or damage suffered by the complainant;
(iii) a declaration that the
complainant is entitled to a specified amount by way of compensation for any
loss or damage suffered by reason of the act or practice the subject of the
complaint;
(iv) a declaration that it
would be inappropriate for any further action to be taken in the matter.
(1A) After investigating an act or practice of a
person or entity under subsection 40(2), the Commissioner may make a
determination that includes one or more of the following:
(a) a declaration that:
(i) the act or practice is
an interference with the privacy of one or more individuals; and
(ii) the person or entity
must not repeat or continue the act or practice;
(b) a declaration that the person or
entity must take specified steps within a specified period to ensure that the
act or practice is not repeated or continued;
(c) a declaration that the person or
entity must perform any reasonable act or course of conduct to redress any loss
or damage suffered by one or more of those individuals;
(d) a declaration that one or more of
those individuals are entitled to a specified amount by way of compensation for
any loss or damage suffered by reason of the act or practice;
(e) a declaration that it would be
inappropriate for any further action to be taken in the matter.
(1AA) The steps specified by the Commissioner under
subparagraph (1)(b)(ia) or paragraph (1A)(b) must be reasonable and
appropriate.
(1AB) The loss or damage referred to in paragraph (1)(b)
or subsection (1A) includes:
(a) injury to the feelings of the
complainant or individual; and
(b) humiliation suffered by the
complainant or individual.
(1B) A determination of the Commissioner under subsection (1)
or (1A) is not binding or conclusive between any of the parties to the
determination.
(2) The Commissioner shall, in a
determination, state any findings of fact upon which the determination is
based.
(3) In a determination under paragraph (1)(a)
or (b) (other than a determination made on a representative complaint), the Commissioner
may include a declaration that the complainant is entitled to a specified
amount to reimburse the complainant for expenses reasonably incurred by the
complainant in connection with the making of the complaint and the
investigation of the complaint.
(3A) A determination under paragraph (1)(b)
or subsection (1A) may include any order that the Commissioner considers
necessary or appropriate.
(4) A determination by the Commissioner under
subparagraph (1)(b)(iii) on a representative complaint:
(a) may provide for payment of
specified amounts or of amounts worked out in a manner specified by the
Commissioner; and
(b) if the Commissioner provides for
payment in accordance with paragraph (a), must make provision for the
payment of the money to the complainants concerned.
(5) If the Commissioner makes a determination
under subparagraph (1)(b)(iii) on a representative complaint, the
Commissioner may give such directions (if any) as he or she thinks just in
relation to:
(a) the manner in which a class member
is to establish his or her entitlement to the payment of an amount under the
determination; and
(b) the manner for determining any
dispute regarding the entitlement of a class member to the payment.
(6) In this
section:
complainant, in relation to a representative
complaint, means the class members.
53
Determination must identify the class members who are to be affected by the
determination
A determination under section 52 on
a representative complaint must describe or otherwise identify those of the
class members who are to be affected by the determination.
53A
Notice to be given to outsourcing agency
(1) If the Commissioner makes a determination
that applies in relation to a contracted service provider for a Commonwealth
contract, the Commissioner:
(a) must give a copy of the
determination to each agency:
(i) to which services are
or were to be provided under the contract; and
(ii) to which the
Commissioner considers it appropriate to give a copy; and
(b) may give such an agency a written
recommendation of any measures that the Commissioner considers appropriate.
(2) The Commissioner may give an agency a
recommendation only after consulting the agency.
(3) An agency that receives a recommendation
from the Commissioner must tell the Commissioner in writing of any action the
agency proposes to take in relation to the recommendation. The agency must do
so within 60 days of receiving the recommendation.
53B
Substituting an agency for a contracted service provider
(1) This section applies if:
(a) a determination under section 52
applies in relation to a contracted service provider for a Commonwealth
contract; and
(b) the determination includes:
(i) a declaration under
subparagraph 52(1)(b)(iii) that the complainant is entitled to a specified
amount by way of compensation; or
(ia) a declaration under
paragraph 52(1A)(d) that one or more individuals are entitled to a
specified amount by way of the compensation; or
(ii) a declaration under
subsection 52(3) that the complainant is entitled to a specified amount by
way of reimbursement; and
(c) at a particular time after the
determination was made, the provider:
(i) dies or ceases to
exist; or
(ii) becomes bankrupt or
insolvent, commences to be wound up, applies to take the benefit of a law for
the relief of bankrupt or insolvent debtors, compounds with creditors or makes
an assignment of any property for the benefit of creditors; and
(d) at that time, the complainant or
individuals had not been paid the whole or part of an amount referred to in paragraph (b).
(2) The Commissioner may determine in writing
that the determination under section 52 instead applies in relation to a
specified agency to which services were or were to be provided under the
contract. The determination has effect according to its terms for the purposes
of section 60.
Note: This means that the amount owed by the
contracted service provider will be a debt due by the agency to the complainant
or individuals.
(3) Before making a determination, the
Commissioner must give the agency:
(a) a notice stating that the
Commissioner proposes to make the determination and stating the reasons for the
proposal; and
(b) an opportunity to appear before
the Commissioner and to make oral and/or written submissions relating to the
proposed determination.
Division 3—Enforcement
54
Application of Division
(1) This Division applies to a determination
made under section 52 after the commencement of this Division, except
where the determination applies in relation to an agency or the principal
executive of an agency.
(2) In this section:
agency does not include the nominated AGHS
company or an eligible hearing service provider.
55
Obligations of organisations and small business operators
If the determination applies in relation
to an organisation or small business operator, the organisation or operator:
(a) must not repeat or continue
conduct that is covered by a declaration included in the determination under
sub‑subparagraph 52(1)(b)(i)(B) or paragraph 52(1A)(a); and
(b) must take the steps that are
specified in a declaration included in the determination under subparagraph 52(1)(b)(ia)
or paragraph 52(1A)(b) within the specified period; and
(c) must perform the act or course of
conduct that is covered by a declaration included in the determination under
subparagraph 52(1)(b)(ii) or paragraph 52(1A)(c).
55A
Proceedings in the Federal Court or Federal Circuit Court to enforce a
determination
(1) The following persons may commence
proceedings in the Federal Court or the Federal Circuit Court for an order to
enforce a determination:
(a) if the determination was made
under subsection 52(1)—the complainant;
(b) the Commissioner.
(2) If the court is satisfied that the person
or entity in relation to which the determination applies has engaged in conduct
that constitutes an interference with the privacy of an individual, the court
may make such orders (including a declaration of right) as it thinks fit.
(3) The court may, if it thinks fit, grant an
interim injunction pending the determination of the proceedings.
(4) The court is not to require a person, as
a condition of granting an interim injunction, to give an undertaking as to
damages.
(5) The court is to deal by way of a hearing
de novo with the question whether the person or entity in relation to which the
determination applies has engaged in conduct that constitutes an interference
with the privacy of an individual.
(6) Despite subsection (5), the court
may receive any of the following as evidence in proceedings about a
determination made by the Commissioner under section 52:
(a) a copy of the Commissioner’s
written reasons for the determination;
(b) a copy of any document that was
before the Commissioner;
(c) a copy of a record (including any
tape recording) of any hearing before the Commissioner (including any oral
submissions made).
(7A) In conducting a hearing and making an order
under this section, the court is to have due regard to the objects of this Act.
(8) In this section:
complainant, in relation to a representative
complaint, means any of the class members.
55B
Evidentiary certificate
(1) The Commissioner may issue a written
certificate setting out the findings of fact upon which the Commissioner based
his or her determination that:
(a) a specified APP entity had
breached an Australian Privacy Principle; or
(b) a specified APP entity had
breached a registered APP code that binds the entity.
(3) In any
proceedings under section 55A, a certificate under subsection (1) of
this section is prima facie evidence of the facts found by the Commissioner and
set out in the certificate. However, the certificate is not prima facie
evidence of a finding that:
(a) a specified APP entity had
breached an Australian Privacy Principle; or
(b) a specified APP entity had
breached a registered APP code that binds the entity.
(4) A document
purporting to be a certificate under subsection (1) must, unless the
contrary is established, be taken to be a certificate and to have been properly
given.
Division 4—Review and
enforcement of determinations involving Commonwealth agencies
57
Application of Division
(1) This Division applies to a determination
that is made under section 52 and that applies in relation to an agency or
the principal executive of an agency.
(2) In this section:
agency does not include the nominated AGHS
company or an eligible hearing service provider.
58
Obligations of agencies
If this Division applies to a
determination and the determination applies in relation to an agency, the
agency:
(a) must not repeat or continue
conduct that is covered by a declaration included in the determination under
subparagraph 52(1)(b)(i) or paragraph 52(1A)(a); and
(b) must take the steps that are
specified in a declaration included in the determination under subparagraph 52(1)(b)(ia)
or paragraph 52(1A)(b) within the specified period; and
(c) must perform the act or course of
conduct that is covered by a declaration included in the determination under
subparagraph 52(1)(b)(ii) or paragraph 52(1A)(c).
59
Obligations of principal executive of agency
If this Division applies to a
determination and the determination applies in relation to the principal
executive of an agency, the principal executive must take all such steps as are
reasonably within his or her power to ensure:
(a) that the terms of the
determination are brought to the notice of all members, officers and employees
of the agency whose duties are such that they may engage in conduct of the kind
to which the determination relates; and
(b) that no member, officer or
employee of the agency repeats or continues conduct that is covered by a
declaration included in the determination under subparagraph 52(1)(b)(i)
or paragraph 52(1A)(a); and
(ba) that the steps specified in a
declaration included in the determination under subparagraph 52(1)(b)(ia)
or paragraph 52(1A)(b) are taken within the specified period; and
(c) the performance of any act or
course of conduct that is covered by a declaration included in the
determination under subparagraph 52(1)(b)(ii) or paragraph 52(1A)(c).
60
Compensation and expenses
(1) If a determination to which this Division
applies includes a declaration of the kind referred to in subparagraph 52(1)(b)(iii),
paragraph 52(1A)(d) or subsection 52(3), the complainant or
individual is entitled to be paid the amount specified in the declaration.
(2) If the determination applies in relation
to an agency that has the capacity to sue and be sued, the amount is
recoverable as a debt due by the agency to the complainant or individual. In
any other case, the amount is recoverable as a debt due by the Commonwealth to
the complainant or individual.
(2B) If a determination relates to a Norfolk
Island agency, the reference in subsection (2) to the Commonwealth
is to be read as a reference to Norfolk Island.
(3) In this section:
complainant, in relation to a representative
complaint, means a class member.
62
Enforcement of determination against an agency
(1) If an agency fails to comply with section 58,
an application may be made to the Federal Court or the Federal Circuit Court
for an order directing the agency to comply.
(2) If the
principal executive of an agency fails to comply with section 59, an
application may be made to the Federal Court or the Federal Circuit Court for
an order directing the principal executive to comply.
(3) The application may be made by:
(a) if the determination was made
under subsection 52(1)—the complainant; or
(b) the Commissioner.
(4) On an application under this section, the
court may make such other orders as it thinks fit with a view to securing
compliance by the agency or principal executive.
(5) An application may not be made under this
section in relation to a determination under section 52 until:
(a) the time has expired for making an
application under section 96 for review of the determination; or
(b) if such an application is made,
the decision of the Administrative Appeals Tribunal on the application has come
into operation.
(6) In this section:
complainant, in relation to a representative
complaint, means a class member.
Division 5—Miscellaneous
63
Legal assistance
(1) If:
(a) the Commissioner has dismissed a
file number complaint; and
(b) the respondent to the complaint is
not an agency or the principal executive of an agency;
the respondent may apply to the Attorney‑General for
assistance under this section.
(2) A person who:
(a) has commenced or proposes to
commence proceedings in the Federal Court or the Federal Circuit Court under
section 55; or
(b) has engaged in conduct or is
alleged to have engaged in conduct in respect of which proceedings have been
commenced in the Federal Court or the Federal Circuit Court under section 55;
may apply to the Attorney‑General for the provision of
assistance under this section in respect of the proceedings.
(2A) Subsection (2) does not permit an
application relating to proceedings under section 55A to enforce a
determination relating to a code complaint or an APP complaint.
(3) If the Attorney‑General is satisfied that
in all the circumstances it is reasonable to grant an application made under
this section, he or she may authorise the provision by the Commonwealth to the
applicant of:
(a) in the case of an application
under subsection (1)—such financial assistance in connection with the
investigation of the complaint as the Attorney‑General determines; or
(b) in the case of an application
under subsection (2)—such legal or financial assistance in respect of the
proceeding as the Attorney‑General determines.
(4) An authorisation under subsection (3)
may be made subject to such conditions (if any) as the Attorney‑General
determines.
(5) In considering an application made under
this section, the Attorney‑General must have regard to any hardship to the
applicant that refusal of the application would involve.
64
Commissioner etc. not to be sued
Neither the Commissioner nor a person
acting under his or her direction or authority is liable to an action, suit or
proceeding in relation to an act done or omitted to be done in good faith in
the exercise or purported exercise of any power or authority conferred by this
Act.
65
Failure to attend etc. before Commissioner
(1) A person shall not:
(a) refuse or fail to attend before
the Commissioner; or
(b) refuse or fail to be sworn or make
an affirmation;
when so required under this Act.
Penalty: $2,000 or imprisonment for 12 months, or both.
(2) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of
the Criminal Code).
(3) A person shall not furnish information or
make a statement to the Commissioner knowing that it is false or misleading in
a material particular.
Penalty: $2,000 or imprisonment for 12 months, or both.
66
Failure to give information etc.
(1) A person
shall not refuse or fail:
(a) to give information; or
(b) to answer a question or produce a
document or record;
when so required under this Act.
Penalty:
(a) in the case of an individual—$2,000
or imprisonment for 12 months, or both; or
(b) in the case of a body
corporate—$10,000.
(1A) For the purposes of subsection (1B), a
journalist has a reasonable excuse if giving the information, answering the
question or producing the document or record would tend to reveal the identity
of a person who gave information or a document or record to the journalist in
confidence.
(1B) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1B) (see subsection 13.3(3) of
the Criminal Code).
(2) For the purposes of subsections (3)
to (11) (inclusive):
document includes a record.
information includes an answer to a question.
(3) Subject to subsections (4), (7) and
(10), it is a reasonable excuse for the purposes of subsection (1B) for an
individual:
(a) to refuse or fail to give
information when so required under this Act; or
(b) to refuse or fail to produce a
document when so required under this Act;
that giving the information, or producing the document, as
the case may be, might tend to incriminate the individual or make the
individual liable to forfeiture or a penalty.
(4) Subsection (3) does not apply in
relation to a failure or refusal by an individual to give information, or to
produce a document, on the ground that giving the information or producing the
document might tend to prove his or her guilt of an offence against, or make
him or her liable to forfeiture or a penalty under, a law of the Commonwealth
or of a Territory, if the Director of Public Prosecutions has given the
individual a written undertaking under subsection (5).
(5) An undertaking by the Director of Public
Prosecutions shall:
(a) be an undertaking that:
(i) information given, or
a document produced, by the individual; or
(ii) any information or
document obtained as a direct or indirect consequence of the giving of the
information, or the production of the document;
will not be used in evidence in
any proceedings for an offence against a law of the Commonwealth or of a
Territory, or in any disciplinary proceedings, against the individual, other
than proceedings in respect of the falsity of evidence given by the individual;
(b) state that, in the opinion of the Director
of Public Prosecutions, there are special reasons why, in the public interest,
the information or document should be available to the Commissioner; and
(c) state the general nature of those
reasons.
(6) The Commissioner may recommend to the
Director of Public Prosecutions that an individual who has been, or is to be,
required under this Act to give information or produce a document be given an
undertaking under subsection (5).
(7) Subsection (3) does not apply in
relation to a failure or refusal by an individual to give information, or to
produce a document, on the ground that giving the information or producing the
document might tend to prove his or her guilt of an offence against, or make
him or her liable to forfeiture or a penalty under, a law of a State, if the
Attorney‑General of the State, or a person authorised by that Attorney‑General
(being the person holding the office of Director of Public Prosecutions, or a
similar office, of the State) has given the individual a written undertaking under
subsection (8).
(8) An undertaking by the Attorney‑General of
the State, or authorised person, shall:
(a) be an undertaking that:
(i) information given, or
a document produced, by the individual; or
(ii) any information or
document obtained as a direct or indirect consequence of the giving of the
information, or the production of the document;
will not be used in evidence in
any proceedings for an offence against a law of the State, or in any
disciplinary proceedings, against the individual, other than proceedings in
respect of the falsity of evidence given by the individual;
(b) state that, in the opinion of the
person giving the undertaking, there are special reasons why, in the public
interest, the information or document should be available to the Commissioner;
and
(c) state the general nature of those
reasons.
(9) The Commissioner may recommend to the
Attorney‑General of a State that an individual who has been, or is to be,
required under this Act to give information or produce a document be given an
undertaking under subsection (8).
(10) For the
purposes of subsection (1B):
(a) it is not a reasonable excuse for
a body corporate to refuse or fail to produce a document that production of the
document might tend to incriminate the body corporate or make it liable to
forfeiture or a penalty; and
(b) it is not a reasonable excuse for
an individual to refuse or fail to produce a document that is, or forms part
of, a record of an existing or past business (not being, if the individual is
or has been an employee, a document that sets out details of earnings received
by the individual in respect of his or her employment and does not set out any
other information) that production of the document might tend to incriminate
the individual or make the individual liable to forfeiture or a penalty.
(11) Subsections (4), (7) and (10) do not
apply where proceedings, in respect of which giving information or producing a
document might tend to incriminate an individual or make an individual liable
to forfeiture or a penalty, have been commenced against the individual and have
not been finally dealt with by a court or otherwise disposed of.
Norfolk Island
(12) In this section:
Attorney‑General, in relation to Norfolk
Island, means the Norfolk Island Justice Minister.
State includes Norfolk Island.
67
Protection from civil actions
Civil proceedings do not lie against a
person in respect of loss, damage or injury of any kind suffered by another
person because of any of the following acts done in good faith:
(a) the making of a complaint under
this Act;
(b) the making of a statement to, or
the giving of a document or information to, the Commissioner, whether or not
pursuant to a requirement under section 44.
68
Power to enter premises
(1) Subject to subsection (3), for the
purposes of the performance by the Commissioner of his or her functions under
this Act, a person authorised by the Commissioner in writing for the purposes
of this section may, at any reasonable time of the day, enter premises occupied
by an agency, an organisation, a file number recipient, a credit reporting body
or a credit provider and inspect any documents that are kept at those premises
and that are relevant to the performance of those functions, other than
documents in respect of which the Attorney‑General has furnished a certificate
under subsection 70(1) or (2) or documents in respect of which the Norfolk
Island Justice Minister has given a certificate under subsection 70(4).
(1A) The Commissioner may authorise a person
only while the person is a member of the staff assisting the Commissioner.
(2) The occupier or person in charge of the
premises shall provide the authorised person with all reasonable facilities and
assistance for the effective exercise of the authorised person’s powers under subsection (1).
(3) A person
shall not enter under subsection (1) premises other than premises that are
occupied by an agency unless:
(a) the occupier of the premises has
consented to the person entering the premises; or
(b) the person is authorised, pursuant
to a warrant issued under subsection (4), to enter the premises.
(3A) Before obtaining the consent, the
authorised person must inform the occupier or person in charge that he or she
may refuse to consent.
(3B) An entry by an authorised person with the
consent of the occupier or person in charge is not lawful if the consent was
not voluntary.
(3C) The authorised person may not enter
premises (other than premises occupied by an agency) if:
(a) the occupant or person in charge
asks the authorised person to produce his or her identity card; and
(b) the authorised person does not
produce it.
(3D) If an authorised person is on premises with
the consent of the occupier or person in charge, the authorised person must
leave the premises if the occupier or person in charge asks the authorised
person to do so.
(4) If, on an application made by a person
authorised by the Commissioner under subsection (1), a Magistrate is
satisfied, by information on oath, that it is reasonably necessary, for the
purposes of the performance by the Commissioner of his or her functions under
this Act, that the person be empowered to enter the premises, the Magistrate
may issue a warrant authorising the person, with such assistance as the person
thinks necessary, to enter the premises, if necessary by force, for the purpose
of exercising those powers.
(5) A warrant
issued under subsection (4) shall state:
(a) whether entry is authorised to be
made at any time of the day or during specified hours of the day; and
(b) a day, not being later than one
month after the day on which the warrant was issued, at the end of which the
warrant ceases to have effect.
(6) Nothing in subsection (1) restricts
the operation of any other provision of this Part.
68A Identity
cards
(1) The Commissioner must issue to a person
authorised for the purposes of section 68 an identity card in the form
approved by the Commissioner. The identity card must contain a recent
photograph of the authorised person.
(2) As soon as practicable after the person
ceases to be authorised, he or she must return the identity card to the
Commissioner.
(3) A person must not contravene subsection (2).
Penalty: 1 penalty unit.
70
Certain documents and information not required to be disclosed
(1) Where the
Attorney‑General furnishes to the Commissioner a certificate certifying that
the giving to the Commissioner of information concerning a specified matter
(including the giving of information in answer to a question), or the
production to the Commissioner of a specified document or other record, would
be contrary to the public interest because it would:
(a) prejudice the security, defence or
international relations of Australia;
(b) involve the disclosure of
communications between a Minister of the Commonwealth and a Minister of a
State, being a disclosure that would prejudice relations between the
Commonwealth Government and the Government of a State;
(c) involve the disclosure of
deliberations or decisions of the Cabinet or of a Committee of the Cabinet;
(d) involve the disclosure of
deliberations or advice of the Executive Council;
(e) prejudice the conduct of an
investigation or inquiry into crime or criminal activity that is currently
being pursued, or prejudice the fair trial of any person;
(f) disclose, or enable a person to
ascertain, the existence or identity of a confidential source of information in
relation to the enforcement of the criminal law;
(g) prejudice the effectiveness of the
operational methods or investigative practices or techniques of agencies
responsible for the enforcement of the criminal law; or
(h) endanger the life or physical
safety of any person;
the Commissioner is not entitled to require a person to
give any information concerning the matter or to produce the document or other
record.
(2) Without limiting the operation of subsection (1),
where the Attorney‑General furnishes to the Commissioner a certificate
certifying that the giving to the Commissioner of information as to the
existence or non‑existence of information concerning a specified matter
(including the giving of information in answer to a question) or as to the
existence or non‑existence of any document or other record required to be
produced to the Commissioner would be contrary to the public interest:
(a) by reason that it would prejudice
the security, defence or international relations of Australia; or
(b) by reason that it would prejudice
the proper performance of the functions of the ACC; or
(c) by reason that it would prejudice
the proper performance of the functions of the Integrity Commissioner;
the Commissioner is not entitled, pursuant to this Act, to
require a person to give any information as to the existence or non‑existence
of information concerning that matter or as to the existence of that document
or other record.
(4) If the Norfolk Island Justice Minister
gives to the Commissioner a certificate certifying that:
(a) the giving to the Commissioner of
information concerning a specified matter (including the giving of information
in answer to a question); or
(b) the production to the Commissioner
of a specified document or other record;
would be contrary to the public interest because it would:
(c) involve the disclosure of
communications between a Norfolk Island Minister and a Minister of the
Commonwealth or of a State, being a disclosure that would prejudice relations
between the Government of Norfolk Island and the Government of the Commonwealth
or of a State; or
(d) involve the disclosure of
deliberations or decisions of the Cabinet of Norfolk Island; or
(e) prejudice the conduct of an
investigation or inquiry into crime or criminal activity that is currently
being pursued, or prejudice the fair trial of any person; or
(f) disclose, or enable a person to
ascertain, the existence or identity of a confidential source of information in
relation to the enforcement of the criminal law; or
(g) prejudice the effectiveness of the
operational methods or investigative practices or techniques of agencies
responsible for the enforcement of the criminal law; or
(h) endanger the life or physical
safety of any person;
the Commissioner is not entitled to require a person to
give any information concerning the matter or to produce the document or other
record.
70B
Application of this Part to former organisations
If an individual, body corporate,
partnership, unincorporated association or trust ceases to be an organisation
but continues to exist, this Part operates in relation to:
(a) an act or practice of the
organisation (while it was an organisation); and
(b) the individual, body corporate,
partnership, unincorporated association or trust;
as if he, she or it were still (and had been at all
relevant times) an organisation.
Example 1: If an individual carrying on a business was not a
small business operator, but later became one and remained alive:
(a) a complaint may be made under this Part about an act
or practice of the individual in carrying on the business before he or she
became a small business operator; and
(b) the complaint may be investigated (and further
proceedings taken) under this Part as though the individual were still an
organisation.
Example 2: A small business operator chooses under section 6EA
to be treated as an organisation, but later revokes the choice. A complaint about
an act or practice the operator engaged in while the choice was registered
under that section may be made and investigated under this Part as if the
operator were an organisation.
Part VI—Public interest
determinations and temporary public interest determinations
Division 1—Public interest determinations
71
Interpretation
For the purposes of this Part, a person
is interested in an application made under section 73 if, and only if, the
Commissioner is of the opinion that the person has a real and substantial
interest in the application.
72
Power to make, and effect of, determinations
Determinations about an APP entity’s acts and practices
(2) Subject to this Division, if the
Commissioner is satisfied that:
(a) an act or practice of an APP
entity breaches, or may breach:
(i) an Australian Privacy
Principle; or
(ii) a registered APP code
that binds the entity; but
(b) the public interest in the entity
doing the act, or engaging in the practice, substantially outweighs the public
interest in adhering to that code or principle;
the Commissioner may, by legislative instrument, make a
determination to that effect.
Effect of determination under subsection (2)
(3) The APP entity is taken not to contravene
section 15 or 26A if the entity does the act, or engages in the practice,
while the determination is in force under subsection (2).
Giving a determination under subsection (2)
general effect
(4) The Commissioner may, by legislative
instrument, make a determination that no APP entity is taken to contravene
section 15 or 26A if, while that determination is in force, an APP entity
does an act, or engages in a practice, that is the subject of a determination
under subsection (2) in relation to that entity or any other APP entity.
Effect of determination under subsection (4)
(5) A determination under subsection (4)
has effect according to its terms.
73
Application by APP entity
(1) An APP entity may apply in accordance
with the regulations for a determination under section 72 about an act or
practice of the entity.
(1A) If:
(a) an application is made under subsection (1);
and
(b) the Commissioner is satisfied that
the application is frivolous, vexatious, misconceived, lacking in substance or
not made in good faith;
the Commissioner may, in writing, dismiss the application.
(2) The CEO of the National Health and
Medical Research Council may make an application under subsection (1) on
behalf of other agencies concerned with medical research or the provision of
health services.
(3) Where an application is made by virtue of
subsection (2), a reference in the succeeding provisions of this Part to
the agency is a reference to the CEO of the National Health and Medical
Research Council.
(4) Where the Commissioner makes a
determination under section 72 on an application made by virtue of subsection (2),
that section has effect, in relation to each of the agencies on whose behalf
the application was made as if the determination had been made on an
application by that agency.
74
Publication of application etc.
(1) Subject to subsection (2), the
Commissioner shall publish, in such manner as he or she thinks fit, notice of:
(a) the receipt by the Commissioner of
an application; and
(b) if the Commissioner dismisses an
application under subsection 73(1A)—the dismissal of the application.
(2) The Commissioner shall not, except with
the consent of the agency, permit the disclosure to another body or person of
information contained in a document provided by an agency as part of, or in
support of, an application if the agency has informed the Commissioner in
writing that the agency claims that the document is an exempt document within
the meaning of Part IV of the Freedom of Information Act 1982.
75
Draft determination
(1) The Commissioner shall prepare a draft of
his or her proposed determination in relation to the application unless the
Commissioner dismisses the application under subsection 73(1A).
(2) If the applicant is an agency, the
Commissioner must send to the agency, and to each other person (if any) who is
interested in the application, a written invitation to notify the Commissioner,
within the period specified in the invitation, whether or not the agency or
other person wishes the Commissioner to hold a conference about the draft
determination.
(2A) If the applicant is an organisation, the
Commissioner must:
(a) send a written invitation to the
organisation to notify the Commissioner, within the period specified in the
invitation, whether or not the organisation wishes the Commissioner to hold a
conference about the draft determination; and
(b) issue, in any way the Commissioner
thinks appropriate, an invitation in corresponding terms to the other persons
(if any) that the Commissioner thinks appropriate.
(3) An invitation under subsection (2)
or subsection (2A) shall specify a period that begins on the day on which
the invitation is sent and is not shorter than the prescribed period.
76
Conference
(1) If an agency, organisation or person
notifies the Commissioner, within the period specified in an invitation sent to
the agency, organisation or person, that the agency, organisation or person
wishes a conference to be held about the draft determination, the Commissioner
shall hold such a conference.
(2) The Commissioner shall fix a day, time
and place for the holding of the conference.
(3) The day fixed shall not be more than 30
days after the latest day on which a period specified in any of the invitations
sent in relation to the draft determination expires.
(4) The Commissioner shall give notice of the
day, time and place of the conference to the agency or organisation and to each
person to whom an invitation was sent.
77
Conduct of conference
(1) At the conference, the agency or
organisation is entitled to be represented by a person who is, or persons each
of whom is, an officer or employee of the agency or organisation.
(2) At the conference, a person to whom an
invitation was sent, or any other person who is interested in the application
and whose presence at the conference is considered by the Commissioner to be
appropriate, is entitled to attend and participate personally or, in the case
of a body corporate, to be represented by a person who is, or persons each of
whom is, a director, officer or employee of the body corporate.
(3) The Commissioner may exclude from the
conference a person who:
(a) is entitled neither to participate
in the conference nor to represent a person who is entitled to be represented
at the conference;
(b) uses insulting language at the
conference;
(c) creates, or takes part in creating
or continuing, a disturbance at the conference; or
(d) repeatedly disturbs the
conference.
78
Determination of application
The Commissioner shall, after complying
with this Part in relation to the application, make:
(a) such determination under section 72
as he or she considers appropriate; or
(b) a written determination dismissing
the application.
79
Making of determination
(1) The Commissioner shall, in making a
determination, take account of all matters raised at the conference.
(2) The Commissioner shall, in making a
determination, take account of all submissions about the application that have
been made, whether at a conference or not, by the agency, organisation or any
other person.
Division 2—Temporary public
interest determinations
80A
Temporary public interest determinations
(1) This section applies if the Commissioner
is satisfied that:
(a) the act or practice of an APP
entity that is the subject of an application under section 73 for a
determination under section 72 breaches, or may breach:
(i) an Australian Privacy
Principle; or
(ii) a registered APP code
that binds the entity; and
(b) the public interest in the entity
doing the act, or engaging in the practice, outweighs to a substantial degree
the public interest in adhering to that principle or code; and
(c) the application raises issues that
require an urgent decision.
(2) The Commissioner may, by legislative
instrument, make a determination that he or she is satisfied of the matters set
out in subsection (1). The Commissioner may do so:
(a) on request by the APP entity; or
(b) on the Commissioner’s own
initiative.
(3) The Commissioner must specify in the
determination a period of up to 12 months during which the determination is in
force (subject to subsection 80D(2)).
80B
Effect of temporary public interest determination
APP entity covered by a determination
(1) If an act or practice of an APP entity is
the subject of a temporary public interest determination, the entity is taken
not to breach section 15 or 26A if the entity does the act, or engages in
the practice, while the determination is in force.
Giving a temporary public interest determination
general effect
(3) The Commissioner may, by legislative
instrument, make a determination that no APP entity is taken to contravene
section 15 or 26A if, while that determination is in force, an APP entity
does an act, or engages in a practice, that is the subject of a temporary
public interest determination in relation to that entity or another APP entity.
Effect of determination under subsection (3)
(4) A determination under subsection (3)
has effect according to its terms.
80D Commissioner
may continue to consider application
(1) The fact that the Commissioner has made a
determination under this Division about an act or practice does not prevent the
Commissioner from dealing under Division 1 with an application made under
section 73 in relation to that act or practice.
(2) A determination under this Division about
an act or practice ceases to be in effect when:
(a) a determination made under subsection 72(2)
about the act or practice comes into effect; or
(b) a determination is made under
paragraph 78(b) to dismiss the application.
Division 3—Register of
determinations
80E
Register of determinations
(1) The Commissioner must keep a register of
determinations made under Division 1 or 2.
(2) The Commissioner may decide the form of
the register and how it is to be kept.
(3) The Commissioner must make the register
available to the public in the way that the Commissioner determines.
(4) The Commissioner may charge fees for:
(a) making the register available to
the public; or
(b) providing copies of, or extracts
from, the register.
Part VIA—Dealing with
personal information in emergencies and disasters
Division 1—Object and interpretation
80F
Object
The object of this Part is to make
special provision for the collection, use and disclosure of personal
information in emergencies and disasters.
80G
Interpretation
(1) In this Part:
duty of confidence means any duty or
obligation arising under the common law or at equity pursuant to which a person
is obliged not to disclose information, but does not include legal professional
privilege.
emergency declaration means a
declaration under section 80J or 80K.
permanent resident means a person, other than
an Australian citizen:
(a) whose normal place of residence is
situated in Australia; and
(b) whose presence in Australia is not subject to any limitation as to time imposed by law; and
(c) who is not an illegal entrant
within the meaning of the Migration Act 1958.
secrecy provision means a provision of a law
of the Commonwealth (including a provision of this Act), or of a Norfolk Island
enactment, that prohibits or regulates the use or disclosure of personal
information, whether the provision relates to the use or disclosure of personal
information generally or in specified circumstances.
(2) For the purposes of this Part, a
reference in the definition of personal information in subsection 6(1)
to an individual is taken to include a reference to an individual who is not
living.
80H
Meaning of permitted purpose
(1) For the purposes of this Part, a permitted
purpose is a purpose that directly relates to the Commonwealth’s
response to an emergency or disaster in respect of which an emergency
declaration is in force.
(2) Without limiting subsection (1), any
of the following is a permitted purpose in relation to an
emergency or disaster:
(a) identifying individuals who:
(i) are or may be injured,
missing or dead as a result of the emergency or disaster; or
(ii) are or may be
otherwise involved in the emergency or disaster;
(b) assisting individuals involved in
the emergency or disaster to obtain services such as repatriation services,
medical or other treatment, health services and financial or other humanitarian
assistance;
(c) assisting with law enforcement in
relation to the emergency or disaster;
(d) coordination or management of the
emergency or disaster;
(e) ensuring that responsible persons
for individuals who are, or may be, involved in the emergency or disaster are
appropriately informed of matters that are relevant to:
(i) the involvement of
those individuals in the emergency or disaster; or
(ii) the response to the
emergency or disaster in relation to those individuals.
Division 2—Declaration of
emergency
80J
Declaration of emergency—events of national significance
The Prime Minister or the Minister may
make a declaration under this section if the Prime Minister or the Minister (as
the case may be) is satisfied that:
(a) an emergency or disaster has
occurred; and
(b) the emergency or disaster is of such
a kind that it is appropriate in the circumstances for this Part to apply in
relation to the emergency or disaster; and
(c) the emergency or disaster is of
national significance (whether because of the nature and extent of the
emergency or disaster, the direct or indirect effect of the emergency or
disaster, or for any other reason); and
(d) the emergency or disaster has
affected one or more Australian citizens or permanent residents (whether within
Australia or overseas).
Note: A declaration under this section is merely a
trigger for the operation of this Part and is not directly related to any other
legislative or non‑legislative scheme about emergencies.
80K
Declaration of emergency—events outside Australia
(1) The Prime Minister or the Minister may
make a declaration under this section if the Prime Minister or the Minister (as
the case may be) is satisfied that:
(a) an emergency or disaster has
occurred outside Australia; and
(b) the emergency or disaster is of
such a kind that it is appropriate in the circumstances for this Part to apply
in relation to the emergency or disaster; and
(c) the emergency or disaster has
affected one or more Australian citizens or permanent residents (whether within
Australia or overseas).
(2) The Minister must consult the Minister
administering the Diplomatic Privileges and Immunities Act 1967 before
the Minister makes a declaration under this section.
Note: A declaration under this section is merely a
trigger for the operation of this Part and is not directly related to any other
legislative or non‑legislative scheme about emergencies.
80L
Form of declarations
(1) An emergency declaration must be in
writing and signed by:
(a) if the Prime Minister makes the
declaration—the Prime Minister; or
(b) if the Minister makes the
declaration—the Minister.
(2) An emergency declaration must be
published, as soon as practicable after the declaration has effect:
(a) on the website maintained by the
Department; and
(b) by notice published in the Gazette.
(3) An emergency declaration is not a
legislative instrument.
80M
When declarations take effect
An emergency declaration has effect from
the time at which the declaration is signed.
80N
When declarations cease to have effect
An emergency declaration ceases to have
effect at the earliest of:
(a) if a time at which the declaration
will cease to have effect is specified in the declaration—at that time; or
(b) the time at which the declaration
is revoked; or
(c) the end of 12 months starting when
the declaration is made.
Division 3—Provisions
dealing with the use and disclosure of personal information
80P
Authorisation of collection, use and disclosure of personal information
(1) At any time when an emergency declaration
is in force in relation to an emergency or disaster, an entity may collect, use
or disclose personal information relating to an individual if:
(a) the entity reasonably believes
that the individual may be involved in the emergency or disaster; and
(b) the collection, use or disclosure
is for a permitted purpose in relation to the emergency or disaster; and
(c) in the case of a disclosure of the
personal information by an agency—the disclosure is to:
(i) an agency; or
(ii) a State or Territory
authority; or
(iii) an organisation; or
(iv) an entity not covered
by subparagraph (i), (ii) or (iii) that is, or is likely to be, involved
in managing, or assisting in the management of, the emergency or disaster; or
(v) a responsible person
for the individual; and
(d) in the case of a disclosure of the
personal information by an organisation or another person—the disclosure is to:
(i) an agency; or
(ii) an entity that is
directly involved in providing repatriation services, medical or other
treatment, health services or financial or other humanitarian assistance
services to individuals involved in the emergency or disaster; or
(iii) a person or entity
prescribed by the regulations for the purposes of this paragraph; or
(iv) a person or entity
specified by the Minister, by legislative instrument, for the purposes of this
paragraph; and
(e) in the case of any disclosure of
the personal information—the disclosure is not to a media organisation.
(2) An entity is not liable to any
proceedings for contravening a secrecy provision in respect of a use or disclosure
of personal information authorised by subsection (1), unless the secrecy
provision is a designated secrecy provision (see subsection (7)).
(3) An entity is not liable to any
proceedings for contravening a duty of confidence in respect of a disclosure of
personal information authorised by subsection (1).
(4) An entity does not breach an Australian
Privacy Principle, or a registered APP code that binds the entity, in respect
of a collection, use or disclosure of personal information authorised by subsection (1).
(6) A collection, use or disclose of personal
information by an officer or employee of an agency in the course of duty as an
officer or employee is authorised by subsection (1) only if the officer or
employee is authorised by the agency to collect, use or disclose the personal
information.
(7) In this section:
designated secrecy provision means any of the
following:
(a) sections 18 and 92 of the Australian
Security Intelligence Organisation Act 1979;
(b) section 34 of the Inspector‑General
of Intelligence and Security Act 1986;
(c) section 39, 39A, 40 and 41 of
the Intelligence Services Act 2001;
(d) a provision of a law of the
Commonwealth prescribed by the regulations for the purposes of this paragraph;
(e) a provision of a law of the
Commonwealth of a kind prescribed by the regulations for the purposes of this
paragraph.
entity includes
the following:
(a) a person;
(b) an agency;
(c) an organisation.
Division 4—Other matters
80Q
Disclosure of information—offence
(1) A person (the first person)
commits an offence if:
(a) personal information that relates
to an individual is disclosed to the first person because of the operation of
this Part; and
(b) the first person subsequently
discloses the personal information; and
(c) the first person is not a
responsible person for the individual.
Penalty: 60 penalty units or imprisonment for 1 year, or
both.
(2) Subsection (1) does not apply to the
following disclosures:
(a) if the first person is an APP
entity—a disclosure permitted under an Australian Privacy Principle or a
registered APP code that binds the person;
(c) a disclosure permitted under
section 80P;
(d) a disclosure made with the consent
of the individual to whom the personal information relates;
(e) a disclosure to the individual to
whom the personal information relates;
(f) a disclosure to a court;
(g) a disclosure prescribed by the
regulations.
Note: A defendant bears an evidential burden in
relation to a matter in subsection (2) (see subsection 13.3(3) of the
Criminal Code).
(3) If a disclosure of personal information
is covered by subsection (2), the disclosure is authorised by this
section.
(4) For the purposes of paragraph (2)(f),
court includes any tribunal, authority or person having power to
require the production of documents or the answering of questions.
80R
Operation of Part
(1) The operation of this Part is not limited
by a secrecy provision of any other law of the Commonwealth (whether made
before or after the commencement of this Act) except to the extent that the
secrecy provision expressly excludes the operation of this section.
Note: Section 3 provides for the concurrent
operation of State and Territory laws.
(1A) The operation of this Part is not limited
by a secrecy provision of a Norfolk Island enactment (whether made before or
after the commencement of this subsection) except to the extent that the
secrecy provision expressly excludes the operation of this subsection.
(2) Nothing in this Part is to be taken to
require an entity to collect, use or disclose personal information.
80S
Severability—additional effect of Part
(1) Without limiting its effect apart from
each of the following subsections of this section, this Part has effect in
relation to a collection, use or disclosure as provided by that subsection.
(2) This Part has the effect it would have if
its operation in relation to a collection, use or disclosure were expressly
confined to a collection, use or disclosure by a corporation.
(3) This Part also has the effect it would
have if its operation in relation to a collection, use or disclosure were
expressly confined to a collection, use or disclosure taking place in the
course of, or in relation to, trade or commerce:
(a) between Australia and places
outside Australia; or
(b) among the States; or
(c) within a Territory, between a
State and a Territory or between 2 Territories.
(4) This Part also has the effect it would
have if its operation in relation to a collection, use or disclosure were
expressly confined to a collection, use or disclosure using a postal,
telegraphic, telephonic or other like service within the meaning of paragraph 51(v)
of the Constitution.
(5) This Part also has the effect it would
have if its operation in relation to a collection, use or disclosure were
expressly confined to a collection, use or disclosure taking place in a
Territory.
(6) This Part also has the effect it would
have if its operation in relation to a collection, use or disclosure were
expressly confined to a collection, use or disclosure taking place in a place
acquired by the Commonwealth for public purposes.
(7) This Part also has the effect it would
have if its operation in relation to a collection, use or disclosure were
expressly confined to a collection, use or disclosure by an agency.
(8) This Part also has the effect it would
have if its operation in relation to a collection, use or disclosure were
expressly confined to a collection, use or disclosure for purposes relating to
the defence of the Commonwealth.
(9) This Part also has the effect that it
would have if its operation in relation to a collection, use or disclosure were
expressly confined to a collection, use or disclosure taking place outside Australia.
(10) This Part also has the effect that it
would have if its operation in relation to a collection, use or disclosure were
expressly confined to a collection, use or disclosure:
(a) in relation to which the
Commonwealth is under an obligation under an international agreement; or
(b) that is of international concern.
(11) This Part also has the effect that it
would have if its operation in relation to a collection, use or disclosure were
expressly confined to a collection, use or disclosure in relation to an
emergency of national significance.
80T
Compensation for acquisition of property—constitutional safety net
(1) If the operation of this Part would
result in an acquisition of property from a person otherwise than on just
terms, the Commonwealth is liable to pay a reasonable amount of compensation to
the person.
(2) If the Commonwealth and the person do not
agree on the amount of the compensation, the person may institute proceedings
in a court of competent jurisdiction for the recovery from the Commonwealth of
such reasonable amount of compensation as the court determines.
(3) In this
section:
acquisition of property has the same meaning
as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in
paragraph 51(xxxi) of the Constitution.
Part VIB—Civil penalty
orders
Division 1—Civil penalty provisions
80U
Civil penalty provisions
A subsection of this Act (or a section
of this Act that is not divided into subsections) is a civil penalty provision
if the words “civil penalty” and one or more amounts in penalty units are set
out at the foot of the subsection (or section).
80V
Ancillary contravention of civil penalty provisions
(1) An entity must not:
(a) attempt to contravene a civil penalty
provision; or
(b) aid, abet, counsel or procure a
contravention of a civil penalty provision; or
(c) induce (by threats, promises or
otherwise) a contravention of a civil penalty provision; or
(d) be in any way, directly or
indirectly, knowingly concerned in, or party to, a contravention of a civil
penalty provision; or
(e) conspire with others to effect a
contravention of a civil penalty provision.
(2) An entity that contravenes subsection (1)
in relation to a civil penalty provision is taken to have contravened the
provision.
Division 2—Obtaining a
civil penalty order
80W
Civil penalty orders
Application for order
(1) The Commissioner may apply to the Federal
Court or Federal Circuit Court for an order that an entity, that is alleged to
have contravened a civil penalty provision, pay the Commonwealth a pecuniary
penalty.
(2) The Commissioner must make the
application within 6 years of the alleged contravention.
Court may order entity to pay pecuniary penalty
(3) If the court is satisfied that the entity
has contravened the civil penalty provision, the court may order the entity to
pay to the Commonwealth such pecuniary penalty for the contravention as the
court determines to be appropriate.
Note: Subsection (5) sets out the maximum
penalty that the court may order the entity to pay.
(4) An order under subsection (3) is a civil
penalty order.
Determining pecuniary penalty
(5) The pecuniary penalty must not be more
than:
(a) if the entity is a body
corporate—5 times the amount of the pecuniary penalty specified for the civil
penalty provision; or
(b) otherwise—the amount of the
pecuniary penalty specified for the civil penalty provision.
(6) In determining the pecuniary penalty, the
court must take into account all relevant matters, including:
(a) the nature and extent of the
contravention; and
(b) the nature and extent of any loss
or damage suffered because of the contravention; and
(c) the circumstances in which the
contravention took place; and
(d) whether the entity has previously
been found by a court in proceedings under this Act to have engaged in any
similar conduct.
80X
Civil enforcement of penalty
(1) A pecuniary penalty is a debt payable to
the Commonwealth.
(2) The Commonwealth may enforce a civil
penalty order as if it were an order made in civil proceedings against the
entity to recover a debt due by the entity. The debt arising from the order is
taken to be a judgement debt.
80Y
Conduct contravening more than one civil penalty provision
(1) If conduct constitutes a contravention of
2 or more civil penalty provisions, proceedings may be instituted under this
Division against an entity in relation to the contravention of any one or more
of those provisions.
(2) However, the entity is not liable to more
than one pecuniary penalty under this Division in relation to the same conduct.
80Z
Multiple contraventions
(1) The Federal Court or Federal Circuit
Court may make a single civil penalty order against an entity for multiple
contraventions of a civil penalty provision if:
(a) proceedings for the contraventions
are founded on the same facts; or
(b) the contraventions form, or are
part of, a series of contraventions of the same or a similar character.
(2) However, the pecuniary penalty must not
exceed the sum of the maximum pecuniary penalties that could be ordered if a
separate civil penalty order were made for each of the contraventions.
Note: In determining the pecuniary penalty, the
court must take into account all relevant matters including the matters
mentioned in subsection 80W(6).
80ZA
Proceedings may be heard together
The Federal Court or Federal Circuit
Court may direct that 2 or more proceedings for civil penalty orders are to be
heard together.
80ZB
Civil evidence and procedure rules for civil penalty orders
The Federal Court or Federal Circuit
Court must apply the rules of evidence and procedure for civil matters when
hearing proceedings for a civil penalty order.
80ZC
Contravening a civil penalty provision is not an offence
A contravention of a civil penalty
provision is not an offence.
Division 3—Civil
proceedings and criminal proceedings
80ZD
Civil proceedings after criminal proceedings
The Federal Court or Federal Circuit
Court must not make a civil penalty order against an entity for a contravention
of a civil penalty provision if the entity has been convicted of an offence
constituted by conduct that is the same, or substantially the same, as the
conduct constituting the contravention.
80ZE
Criminal proceedings during civil proceedings
(1) Proceedings for a civil penalty order
against an entity for a contravention of a civil penalty provision are stayed
if:
(a) criminal proceedings are commenced
or have already been commenced against the entity for an offence; and
(b) the offence is constituted by
conduct that is the same, or substantially the same, as the conduct alleged to
constitute the contravention.
(2) The proceedings for the civil penalty
order may be resumed if the entity is not convicted of the offence. Otherwise:
(a) the proceedings are dismissed; and
(b) costs must not be awarded in
relation to the proceedings.
80ZF
Criminal proceedings after civil proceedings
Criminal proceedings may be commenced
against an entity for conduct that is the same, or substantially the same, as conduct
that would constitute a contravention of a civil penalty provision regardless
of whether a civil penalty order has been made against the entity in relation
to the contravention.
80ZG
Evidence given in proceedings for civil penalty order not admissible in
criminal proceedings
(1) Evidence of information given, or
evidence of production of documents, by an individual is not admissible in
criminal proceedings against the individual if:
(a) the individual previously gave the
evidence or produced the documents in proceedings for a civil penalty order
against the individual for an alleged contravention of a civil penalty
provision (whether or not the order was made); and
(b) the conduct alleged to constitute
the offence is the same, or substantially the same, as the conduct alleged to
constitute the contravention.
(2) However, subsection (1) does not
apply to criminal proceedings in relation to the falsity of the evidence given
by the individual in the proceedings for the civil penalty order.
Part VII—Privacy Advisory
Committee
81
Interpretation
In this Part, unless the contrary
intention appears:
Advisory Committee means the Privacy Advisory
Committee established by subsection 82(1).
member means a member of the Advisory
Committee.
82
Establishment and membership
(1) A Privacy Advisory Committee is
established.
(2) The Advisory Committee shall consist of:
(a) the Commissioner; and
(aa) the Privacy Commissioner (within
the meaning of the Australian Information Commissioner Act 2010); and
(b) not more than 8 other members.
(3) A member other than the Commissioner and
Privacy Commissioner (within the meaning of that Act):
(a) shall be appointed by the Governor‑General;
and
(b) shall be appointed as a part‑time
member.
(4) An appointed member holds office, subject
to this Act, for such period, not exceeding 5 years, as is specified in the
instrument of the member’s appointment, but is eligible for re‑appointment.
(5) The Commissioner shall be convenor of the
Committee.
(6) The Governor‑General shall so exercise
the power of appointment conferred by subsection (3) that a majority of
the appointed members are persons who are neither officers nor employees, nor
members of the staff of an authority or instrumentality, of the Commonwealth.
(7) Of the appointed members:
(a) at least one must be a person who
has had at least 5 years’ experience at a high level in industry or commerce;
and
(aa) at least one must be a person who
has had at least 5 years’ experience at a high level in public administration,
or the service of a government or an authority of a government; and
(ab) at least one must be a person who
has had extensive experience in health privacy; and
(b) at least one must be a person who
has had at least 5 years’ experience in the trade union movement; and
(c) at least one must be a person who
has had extensive experience in information and communication technologies; and
(d) at least one must be appointed to
represent general community interests, including interests relating to social
welfare; and
(e) at least one must be a person who
has had extensive experience in the promotion of civil liberties.
(10) An appointed member holds office on such
terms and conditions (if any) in respect of matters not provided for by this
Act as are determined, in writing, by the Governor‑General.
(11) The performance of a function of the
Advisory Committee is not affected because of a vacancy or vacancies in the
membership of the Advisory Committee.
83
Functions
The functions of the Advisory Committee
are:
(a) on its own initiative, or when
requested by the Commissioner, to advise the Commissioner on matters relevant
to his or her functions;
(b) to recommend material to the
Commissioner for inclusion in rules or guidelines to be issued by the
Commissioner pursuant to his or her functions; and
(c) subject to any direction given by
the Commissioner, to engage in and promote community education, and community
consultation, in relation to the protection of individual privacy.
84
Leave of absence
The convenor may, on such terms and
conditions as the convenor thinks fit, grant to another member leave to be
absent from a meeting of the Advisory Committee.
85
Removal and resignation of members
(1) The Governor‑General may terminate the
appointment of an appointed member for misbehaviour or physical or mental
incapacity.
(2) The Governor‑General shall terminate the
appointment of an appointed member if the member:
(a) becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with the member’s creditors or makes an assignment of the member’s
remuneration for their benefit;
(b) fails, without reasonable excuse,
to comply with the member’s obligations under section 86; or
(c) is absent, without the leave of
the convenor, from 3 consecutive meetings of the Advisory Committee.
(3) An appointed member may resign from
office by delivering a signed notice of resignation to the Governor‑General.
86
Disclosure of interests of members
(1) A member who has a direct or indirect
pecuniary interest in a matter being considered or about to be considered by
the Advisory Committee, being an interest that could conflict with the proper
performance of that member’s functions in relation to the consideration of the
matter, shall, as soon as practicable after the relevant facts have come to the
knowledge of that member, disclose the nature of that interest at a meeting of
the Advisory Committee.
(2) A disclosure under subsection (1) at
a meeting of the Advisory Committee shall be recorded in the minutes of the
meeting.
87
Meetings of Advisory Committee
(1) The convenor may convene such meetings of
the Advisory Committee as the convenor considers necessary for the performance
of the Committee’s functions.
(2) Meetings of the Advisory Committee shall
be held at such places and at such times as the convenor determines.
(3) The convenor shall preside at all
meetings of the Advisory Committee at which the convenor is present.
(4) If, at a meeting of the Advisory
Committee, the convenor is not present, the members who are present shall elect
one of their number to preside at the meeting.
(5) At a meeting of the Advisory Committee:
(a) 3 members constitute a quorum;
(b) all questions shall be decided by
a majority of votes of the members present and voting; and
(c) the person presiding has a
deliberative vote and, in the event of an equality of votes, also has a casting
vote.
(6) The Advisory Committee shall keep a
record of its proceedings.
88
Travel allowance
An appointed member is entitled to be
paid travelling allowance in accordance with the regulations.
Part VIII—Obligations of
confidence
89
Obligations of confidence to which Part applies
Unless the contrary intention appears, a
reference in this Part to an obligation of confidence is a reference to an
obligation of confidence:
(a) to which an agency or a
Commonwealth officer is subject, however the obligation arose; or
(b) that arises under or by virtue of
the law in force in the Australian Capital Territory; or
(c) that arises under or by virtue of
a Norfolk Island enactment that is in force.
90
Application of Part
(1) This Part applies where a person (in this
Part called a confidant) is subject to an obligation of
confidence to another person (in this Part called a confider) in
respect of personal information, whether the information relates to the
confider or to a third person, being an obligation in respect of a breach of
which relief may be obtained (whether in the exercise of a discretion or not)
in legal proceedings.
(2) This Part does not apply where a criminal
penalty only may be imposed in respect of the breach.
91
Effect of Part on other laws
This Part does not, except to the extent
that it does so expressly or by necessary implication, limit or restrict the
operation of any other law or of any principle or rule of the common law or of
equity, being a law, principle or rule:
(a) under or by virtue of which an
obligation of confidence exists; or
(b) that has the effect of restricting
or prohibiting, or imposing a liability (including a criminal liability) on a
person in respect of, a disclosure or use of information.
92
Extension of certain obligations of confidence
Where a person has acquired personal
information about another person and the first‑mentioned person knows or ought
reasonably to know that the person from whom he or she acquired the information
was subject to an obligation of confidence with respect to the information, the
first‑mentioned person, whether he or she is in the Australian Capital
Territory or not, is subject to a like obligation.
93
Relief for breach etc. of certain obligations of confidence
(1) A confider may recover damages from a
confidant in respect of a breach of an obligation of confidence with respect to
personal information.
(2) Subsection (1) does not limit or
restrict any other right that the confider has to relief in respect of the
breach.
(3) Where an obligation of confidence exists
with respect to personal information about a person other than the confider,
whether the obligation arose under a contract or otherwise, the person to whom
the information relates has the same rights against the confidant in respect of
a breach or threatened breach of the obligation as the confider has.
94
Jurisdiction of courts
(1) The jurisdiction of the courts of the Australian Capital Territory extends to matters arising under this Part.
(2) Subsection (1) does not deprive a
court of a State or of another Territory of any jurisdiction that it has.
Part IX—Miscellaneous
95
Medical research guidelines
(1) The CEO of the National Health and
Medical Research Council may, with the approval of the Commissioner, issue
guidelines for the protection of privacy by agencies in the conduct of medical
research.
(2) The Commissioner shall not approve the
issue of guidelines unless he or she is satisfied that the public interest in
the promotion of research of the kind to which the guidelines relate outweighs
to a substantial degree the public interest in maintaining adherence to the Australian
Privacy Principles.
(3) Guidelines shall be issued by being
published in the Gazette.
(4) Where:
(a) but for this subsection, an act
done by an agency would breach an Australian Privacy Principle; and
(b) the act is done in the course of
medical research and in accordance with guidelines under subsection (1);
the act shall be regarded as not breaching that Australian
Privacy Principle.
95A
Guidelines for Australian Privacy Principles about health information
Overview
(1) This section allows the Commissioner to
approve for the purposes of the Australian Privacy Principles guidelines that
are issued by the CEO of the National Health and Medical Research Council or a
prescribed authority.
Approving guidelines for use and disclosure
(2) For the purposes of paragraph 16B(3)(c),
the Commissioner may, by notice in the Gazette, approve guidelines that
relate to the use and disclosure of health information for the purposes of
research, or the compilation or analysis of statistics, relevant to public
health or public safety.
Public interest test
(3) The Commissioner may give an approval
under subsection (2) only if satisfied that the public interest in the use
and disclosure of health information for the purposes mentioned in that
subsection in accordance with the guidelines substantially outweighs the public
interest in maintaining the level of privacy protection afforded by the Australian
Privacy Principles (disregarding subsection 16B(3)).
Approving guidelines for collection
(4) For the purposes of subparagraph 16B(2)(d)(iii),
the Commissioner may, by notice in the Gazette, approve guidelines that
relate to the collection of health information for the purposes of:
(a) research, or the compilation or
analysis of statistics, relevant to public health or public safety; or
(b) the management, funding or
monitoring of a health service.
Public interest test
(5) The Commissioner may give an approval
under subsection (4) only if satisfied that the public interest in the collection
of health information for the purposes mentioned in that subsection in
accordance with the guidelines substantially outweighs the public interest in
maintaining the level of privacy protection afforded by the Australian Privacy
Principles (disregarding subsection 16B(2)).
Revocation of approval
(6) The Commissioner may, by notice in the Gazette,
revoke an approval of guidelines under this section if he or she is no longer
satisfied of the matter that he or she had to be satisfied of to approve the
guidelines.
95AA
Guidelines for Australian Privacy Principles about genetic information
Overview
(1) This section allows the Commissioner to
approve for the purposes of the Australian Privacy Principles guidelines that
are issued by the National Health and Medical Research Council.
Approving guidelines for use and disclosure
(2) For the purposes of paragraph 16B(4)(c),
the Commissioner may, by legislative instrument, approve guidelines that relate
to the use and disclosure of genetic information for the purposes of lessening
or preventing a serious threat to the life, health or safety of an individual
who is a genetic relative of the individual to whom the genetic information
relates.
95B
Requirements for Commonwealth contracts
(1) This section requires an agency entering
into a Commonwealth contract to take contractual measures to ensure that a
contracted service provider for the contract does not do an act, or engage in a
practice, that would breach an Australian Privacy Principle if done or engaged
in by the agency.
(2) The agency must ensure that the
Commonwealth contract does not authorise a contracted service provider for the
contract to do or engage in such an act or practice.
(3) The agency must also ensure that the
Commonwealth contract contains provisions to ensure that such an act or
practice is not authorised by a subcontract.
(4) For the purposes of subsection (3),
a subcontract is a contract under which a contracted service
provider for the Commonwealth contract is engaged to provide services to:
(a) another contracted service
provider for the Commonwealth contract; or
(b) any agency;
for the purposes (whether direct or indirect) of the
Commonwealth contract.
(5) This section applies whether the agency
is entering into the Commonwealth contract on behalf of the Commonwealth or in
the agency’s own right.
95C
Disclosure of certain provisions of Commonwealth contracts
If a person asks a party to a
Commonwealth contract to be informed of the content of provisions (if any) of the
contract that are inconsistent with a registered APP code binding a party to
the contract or with an Australian Privacy Principle, the party requested must
inform the person in writing of that content (if any).
96
Review by the Administrative Appeals Tribunal
(1) An application may be made to the
Administrative Appeals Tribunal for review of the following decisions of the
Commissioner:
(a) a decision under subsection 26H(1)
not to register an APP code developed by an APP code developer;
(b) a decision under subsection 26S(1)
not to register a CR code developed by a CR code developer;
(c) a decision under subsection 52(1)
or (1A) to make a determination;
(d) a decision under subsection 73(1A)
to dismiss an application;
(e) a decision under section 95
to refuse to approve the issue of guidelines;
(f) a decision under subsection 95A(2)
or (4) or 95AA(2) to refuse to approve guidelines;
(g) a decision under subsection 95A(6)
to revoke an approval of guidelines.
(2) An application under paragraph (1)(a)
may only be made by the APP code developer that developed the APP code.
(3) An application under paragraph (1)(b)
may only be made by the CR code developer that developed the CR code.
98
Injunctions
(1) Where a person has engaged, is engaging
or is proposing to engage in any conduct that constituted or would constitute a
contravention of this Act, the Federal Court or the Federal Circuit Court may,
on the application of the Commissioner or any other person, grant an injunction
restraining the person from engaging in the conduct and, if in the court’s
opinion it is desirable to do so, requiring the person to do any act or thing.
(2) Where:
(a) a person has refused or failed, or
is refusing or failing, or is proposing to refuse or fail, to do an act or
thing; and
(b) the refusal or failure was, is, or
would be a contravention of this Act;
the Federal Court or the Federal Circuit Court may, on the
application of the Commissioner or any other person, grant an injunction
requiring the first‑mentioned person to do that act or thing.
(3) Where an application is made to the court
for an injunction under this section, the court may, if in the court’s opinion
it is desirable to do so, before considering the application, grant an interim
injunction restraining a person from engaging in conduct of the kind referred
to in that subsection pending the determination of the application.
(4) The court may discharge or vary an
injunction granted under this section.
(5) The power
of the court to grant an injunction restraining a person from engaging in
conduct of a particular kind may be exercised:
(a) if the court is satisfied that the
person has engaged in conduct of that kind—whether or not it appears to the
court that the person intends to engage again, or to continue to engage, in
conduct of that kind; or
(b) if it appears to the court that,
in the event that an injunction is not granted, it is likely that the person
will engage in conduct of that kind—whether or not the person has previously
engaged in conduct of that kind and whether or not there is an imminent danger
of substantial damage to any person if the first‑mentioned person engages in
conduct of that kind.
(6) The power of the court to grant an
injunction requiring a person to do a particular act or thing may be exercised:
(a) if the court is satisfied that the
person has refused or failed to do that act or thing—whether or not it appears
to the court that the person intends to refuse or fail again, or to continue to
refuse or fail, to do that act or thing; or
(b) if it appears to the court that,
in the event that an injunction is not granted, it is likely that the person
will refuse or fail to do that act or thing—whether or not the person has
previously refused or failed to do that act or thing and whether or not there
is an imminent danger of substantial damage to any person if the first‑mentioned
person refuses or fails to do that act or thing.
(7) Where the Commissioner makes an
application to the court for the grant of an injunction under this section, the
court shall not require the Commissioner or any other person, as a condition of
the granting of an interim injunction, to give any undertakings as to damages.
(8) The powers conferred on the court under
this section are in addition to, and not in derogation of, any powers of the
court, whether conferred by this Act or otherwise.
98A
Treatment of partnerships
(1) If, apart from this subsection, this Act
would impose an obligation on a partnership, the obligation is imposed instead
on each partner but may be discharged by any of the partners.
(2) If, apart from this subsection, an
offence against this Act would be committed by a partnership, the offence is
taken to have been committed by each partner.
(3) If, apart from this subsection, a
partnership would contravene a civil penalty provision, the contravention is
taken to have been committed by each partner.
(4) A partner does not commit an offence
against this Act because of subsection (2), or contravene a civil penalty
provision because of subsection (3), if the partner:
(a) does not know of the circumstances
that constitute the contravention of the provision concerned; or
(b) knows of those circumstances but
takes all reasonable steps to correct the contravention as soon as possible
after the partner becomes aware of those circumstances.
Note: In criminal proceedings, a defendant bears an
evidential burden in relation to the matters in subsection (4) (see
subsection 13.3(3) of the Criminal Code).
98B
Treatment of unincorporated associations
(1) If, apart from this subsection, this Act
would impose an obligation on an unincorporated association, the obligation is
imposed instead on each member of the association’s committee of management but
may be discharged by any of the members.
(2) If, apart from this subsection, an
offence against this Act would be committed by an unincorporated association,
the offence is taken to have been committed by each member of the association’s
committee of management.
(3) If, apart from this subsection, an
unincorporated association would contravene a civil penalty provision, the
contravention is taken to have been committed by each member of the
association’s committee of management.
(4) A member of an unincorporated
association’s committee of management does not commit an offence against this
Act because of subsection (2), or contravene a civil penalty provision
because of subsection (3), if the member:
(a) does not know of the circumstances
that constitute the contravention of the provision concerned; or
(b) knows of those circumstances but
takes all reasonable steps to correct the contravention as soon as possible
after the member becomes aware of those circumstances.
Note: In criminal proceedings, a defendant bears an
evidential burden in relation to the matters in subsection (4) (see
subsection 13.3(3) of the Criminal Code).
98C
Treatment of trusts
(1) If, apart from this subsection, this Act
would impose an obligation on a trust, the obligation is imposed instead on
each trustee of the trust but may be discharged by any of the trustees.
(2) If, apart from this subsection, an
offence against this Act would be committed by a trust, the offence is taken to
have been committed by each trustee of the trust.
(3) If, apart from this subsection, a trust
would contravene a civil penalty provision, the contravention is taken to have
been committed by each trustee of the trust.
(4) A trustee of a trust does not commit an
offence against this Act because of subsection (2), or contravene a civil
penalty provision because of subsection (3), if the trustee:
(a) does not know of the circumstances
that constitute the contravention of the provision concerned; or
(b) knows of those circumstances but
takes all reasonable steps to correct the contravention as soon as possible
after the trustee becomes aware of those circumstances.
Note: In criminal proceedings, a defendant bears an
evidential burden in relation to the matters in subsection (4) (see
subsection 13.3(3) of the Criminal Code).
99A
Conduct of directors, employees and agents
(1) Where, in proceedings for an offence
against this Act or for a civil penalty order, it is necessary to establish the
state of mind of a body corporate in relation to particular conduct, it is
sufficient to show:
(a) that the conduct was engaged in by
a director, employee or agent of the body corporate within the scope of his or
her actual or apparent authority; and
(b) that the director, employee or
agent had the state of mind.
(2) Any conduct engaged in on behalf of a
body corporate by a director, employee or agent of the body corporate within
the scope of his or her actual or apparent authority is to be taken, for the
purposes of a prosecution for an offence against this Act or proceedings for a
civil penalty order, to have been engaged in also by the body corporate unless
the body corporate establishes that the body corporate took reasonable
precautions and exercised due diligence to avoid the conduct.
(3) Where, in
proceedings for an offence against this Act or for a civil penalty order, it is
necessary to establish the state of mind of a person other than a body
corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by
an employee or agent of the person within the scope of his or her actual or
apparent authority; and
(b) that the employee or agent had the
state of mind.
(4) Any conduct engaged in on behalf of a
person other than a body corporate by an employee or agent of a person within
the scope of his or her actual or apparent authority is to be taken, for the
purposes of a prosecution for an offence against this Act or proceedings for a
civil penalty order, to have been engaged in also by the first‑mentioned person
unless the first‑mentioned person establishes that the first‑mentioned person
took reasonable precautions and exercised due diligence to avoid the conduct.
(5) Where:
(a) a person other than a body
corporate is convicted of an offence; and
(b) the
person would not have been convicted of the offence if subsections (3) and
(4) had not been enacted;
the person is not liable to be punished by imprisonment
for that offence.
(6) A reference in subsection (1) or (3)
to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion,
belief or purpose of the person; and
(b) the person’s reasons for the
intention, opinion, belief or purpose.
(7) A reference in this section to a director
of a body corporate includes a reference to a constituent member of a body
corporate incorporated for a public purpose by a law of the Commonwealth, of a
State or of a Territory.
(8) A reference in this section to engaging
in conduct includes a reference to failing or refusing to engage in conduct.
100 Regulations
(1) The Governor‑General may make
regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
(2) Before the Governor‑General makes
regulations for the purposes of Australian Privacy Principle 9.3
prescribing a government related identifier, an organisation or a class of
organisations, and circumstances, the Minister must be satisfied that:
(a) the relevant agency or State or
Territory authority or, if the relevant agency or State or Territory authority
has a principal executive, the principal executive:
(i) has agreed that the
adoption, use or disclosure of the identifier by the organisation, or the class
of organisations, in the circumstances is appropriate; and
(ii) has consulted the
Commissioner about that adoption, use or disclosure; and
(b) the adoption, use or disclosure of
the identifier by the organisation, or the class of organisations, in the
circumstances can only be for the benefit of the individual to whom the
identifier relates.
(3) Subsection (2) does not apply to the
making of regulations for the purposes of Australian Privacy Principle 9.3
that relate to the use or disclosure of a government related identifier by an
organisation, or a class of organisations, in particular circumstances if:
(a) the identifier is a kind commonly
used in the processing of pay, or deductions from pay, of Commonwealth
officers, or a class of Commonwealth officers; and
(b) the circumstances of the use or
disclosure of the identifier relate to the provision by:
(i) the organisation; or
(ii) the class of
organisations;
of superannuation services
(including the management, processing, allocation and transfer of
superannuation contributions) for the benefit of Commonwealth officers or the
class of Commonwealth officers; and
(c) before the regulations are made,
the Minister consults the Commissioner about the proposed regulations.