Privacy Law in Australia

Transcript

Privacy in Australia. Does the Privacy Act apply to you? The Federal Privacy Act 1988 is designed to promote the protection of individuals' privacy in Australia by imposing obligations on those who collect and handle personal information to manage it responsibly and transparently. It does so by reference to a number of principles known as the Australian Privacy Principles. These principles are similar to those found in other jurisdictions such as Canada and Europe.

Initially, the Privacy Act only applied to Commonwealth Government agencies and departments but now it also applies to the private sector. If your business is a medium to large organisation that collects, handles or stores personal information then there is a good chance the Privacy Act applies to you. It is not necessary for your business to be a company in order to be covered. Individuals, partnerships, unincorporated associations and trusts can all be caught by the legislation.

The Privacy Act applies to businesses, not-for-profit organisations such as charities and community sector organisations, clubs and associations and unions and employee organisations whenever turnover exceeds $3 million. However, even if turnover is less than that, you may still be caught by the Act. For example, the Act will apply if your organisation provides a health service to another individual and holds any health information that is not about your employees.

For these purposes, health service includes not just medical and allied healthcare but also pharmaceutical services, complementary therapies such as acupuncture and chiropractic and services such as gyms and health spas. It also applies to credit reporting bodies or businesses that trade in personal information, service providers under contract to the Commonwealth Government and those entities which are related to a company that is caught by the legislation such as a holding company or subsidiary of a larger company.

Some businesses or organisations are created under the privacy regulations such as those which operate a residential tenancies database and are automatically subject to the legislation. Others have opted to be regarded as an organisation for these purposes. A register of these businesses is kept by the Australian Office of the Information Commissioner or OIC. Some businesses benefit from greater customer confidence and trust that comes with operating under the Privacy Act, even where they are not strictly required to do so.

The Privacy Act does not cover small businesses, those with a turnover below $3 million that aren't covered by one of the exceptions above or an individual collecting information for personal, family or household reasons rather than in the course of running a business. It does not apply to public schools or to universities other than a private university or the Australian National University.

Registered political parties are exempt from the legislation as are members of parliament and local government councillors, contractors and volunteers who are performing actions in relation to or facilitating elections, referendums or other aspects of the political process. Media organisations engaged in journalism which have made a public commitment to observe privacy standards are not necessarily formally caught by the legislation.

State and territory government agencies are exempt unless certain conditions apply. Special exemptions apply to information that has originated or has been received from an Australian intelligence agency, defence intelligence organisation, defence signals directorate, defence imagery and geospatial organisation or the Australian Crime Commission. In most cases, if you are a private sector organisation it is the Federal Privacy Act that will apply to you.

If, however, you contract with a state government agency to, for example, provide IT services within a department or to provide community-based services such as shelter for homeless people, then the terms of that contract will often bind you to the relevant state legislation. The obligations under the state legislation will be broadly similar to the obligations under the Federal Act. However, you should seek legal advice in relation to your particular circumstances.

The privacy legislation which applies in the ACT is the Information Privacy Act 2014 and the Health Records Privacy and Access Act 1997. In New South Wales, privacy is governed by the Health Records and Information Privacy Act 2002 and the Privacy and Personal Information Protection Act 1998. Northern Territory Privacy Law is found in the Information Act. For Queensland, the relevant legislation is the Information Privacy Act 2009.

For Tasmania, it is the Personal Information Protection Act 2004. And for Western Australia, it is the Freedom of Information Act 1992. In Victoria, privacy laws are found in the Privacy and Data Protection Act 2014 and the Health Records Act 2001. Unlike other states and territories, South Australia's privacy legislation relates only to the healthcare sector through the Health Care Act 2008.

However, government agencies are required to abide by the information privacy principles and, if relevant, the Code of Fair Information Practice. If you or someone you know is concerned about privacy obligations or believes that their privacy has been breached, Go To Court Lawyers, operate a legal hotline on the retired Go To Court contact number (omitted) where you can talk directly to a lawyer 7am till midnight 7 days a week.

Your call will be treated with the strictest confidentiality and without judgement, the lawyer will assess your matter and recommend a course of action. Should you need a lawyer, even if it isn't very short notice, the legal hotline staff will be able to arrange legal representation for you. You can also request a call back via the website, gotocourt.com.au and a lawyer will call you back to assess your matter.