australia data privacy law 2021

This notice can be sent by email; the notice must indicate the kind of surveillance to be carried out, how it will be carried out, when it will start, whether it will be continuous or intermittent, and whether it will be for a specified limited period or ongoing; in relation to camera surveillance, signage must be erected that is clearly visible at each entrance notifying employees that they may be under surveillance; in relation to computer surveillance, employees must be notified of the employers policy on computer surveillance; and. a process for reviewing the programme and keeping the programme up to date. 11.4 What are the maximum penalties for breaches of applicable cookie restrictions? Under s. 16C of the Privacy Act, the Australian entity is legally responsible for any breaches of the APPs by the recipient on the basis that they believe that the foreign recipient will be compliant with the APPs. The following exceptions apply to personal information (not sensitive information): Under the Spam Act, express or inferred consent is required for the sending of an electronic message (see section 16). Please refer to the discussion under question 15.1 below for further information. 9.2 If it is necessary to enter into an agreement, what are the formalities of that agreement (e.g., in writing, signed, etc.) In theory, the APPs do not apply differently to different types of cookies. If so, does such a ban require a court order? 1.2 Is there any other general legislation that impacts data protection? 19.2 What hot topics are currently a focus for the data protection regulator? As processing activities do not generally require registration, they would not be banned unless they are in breach of applicable legislative requirements. APP 11 requires all APP entities to take reasonable steps to protect personal information they hold from misuse, interference, loss, unauthorised access, modification or disclosure. Beginning a dialogue in the board room about a companys cybersecurity is an effective way to address cyber risk management from the highest level. Such protection is not applicable in Australia generally and not provided in the Government Agencies APP Code in respect of government agencies. 12.5 What guidance (if any) has/have the data protection authority(ies) issued in relation to the European Commissions revised Standard Contractual Clauses published on 4 June 2021? The judgment found that through its installation and/or management of cookies on devices of Australian users, Facebook was deemed to be carrying on business in Australia and therefore subject to Australian privacy law.

The vaccination status of an individual is classified as sensitive information under the Privacy Act. According to the Australian Privacy Principles Guidelines issued by the OAIC in July 2019 (APP Guidelines): An entity uses personal information when it handles and manages that information within the entitys effective control. As part of the APP Guidelines, the OAIC has provided some guidance to businesses relating to disclosure to foreign law enforcement agencies in connection with APP 8. In addition, some industries, such as buses and taxis, operate under industry specific laws that regulate their use of CCTV. New South Wales, Victoria and the Australian Capital Territory have specific legislation regulating workplace surveillance. Businesses are required to comply with APP 6 for any disclosure of personal information and APP 8 for cross-border disclosure of personal information. 17.1 Describe the enforcement powers of the data protection authority(ies). If an individual has consented to an entitys collection of the individuals personal information for a primary purpose, then the information should not be used for another purpose (secondary purpose) save for a few exceptions, including where the individual would reasonably expect the entity to use or disclose the information for the secondary purpose. 7.3 On what basis are registrations/notifications made (e.g., per legal entity, per processing purpose, per data category, per system or database)? However, there are a number of exceptions to this prohibition. 9.1 If a business appoints a processor to process personal data on its behalf, must the business enter into any form of agreement with that processor? The entity must give a copy of this statement to the Commissioner as soon as practicable.

for a body corporate, a maximum civil penalty amount being the greater of: if the relevant court can determine the value of the benefit obtained from the contravention, three times the value of that benefit; or, if the court cannot determine the value of that benefit, 10% of the body corporates annual turnover in the year preceding the contravention; or. 10.5 Is/are the relevant data protection authority(ies) active in enforcement of breaches of marketing restrictions? the recipient can opt out of the binding scheme without notice and without returning or destroying the personal information. Where the processing activity is also a material business function and outsourced, the APRA has regulatory powers to enforce and ensure any data processing activity is done in accordance with CPS 231. MinterEllison, The International Comparative Legal Guides and the International Business Reports are published by: Global Legal Group, The ICLG Series - In my practice as a commercial real estate risk manager at GE Capital and as a consultant to private equity clients in Europe I have used and can recommend GLG publications as a starting point for solutions to cross-border transaction hurdles.

So far, there has been no official Australian data protection authority guidance issued in this regard. If the appointment of a Data Protection Officer is only mandatory in some circumstances, please identify those circumstances. Such secondary purpose should: APP 3 stipulates that personal information must not be collected unless it is reasonably necessary for: Furthermore, APP 11 requires personal information to be destroyed/de-identified where an entity no longer requires the information for any purpose for which the information may be used or disclosed under the APPs. employees must be notified at least 14 days before the surveillance commences (or before a new employee commences work if they are due to commence within 14 days). This would permit a person in a specific position in a government agency to be designated as the privacy officer of multiple government agencies. In the current age of well-publicised, sophisticated cyber threats, the bar for such harm materialising is increasingly low and the recent decision of ASIC v RI Advice Group Pty Ltd demonstrates ASICs renewed concern to drive the issue home. in the case of sensitive information, be directly related to the primary purpose. Alternatively, if it is not practical or reasonable for an APP entity to establish the capacity of an individual under the age of 18, the entity may presume: The APP Guidelines mentions that in some circumstances, it may be appropriate for a parent or guardian to consent on behalf of a young person, for example, if the child is young or lacks the maturity or understanding to do so themselves. In consequence, the Court ordered the AFS licence holder to engage cybersecurity experts (as agreed between itself and ASIC) to identify what, if any, further documentation and controls in respect of cybersecurity and cyber resilience is necessary for the AFS licence holder to adequately manage any risks. Australia. The Spam Act prohibits the sending of unsolicited and non-consensual electronic messages. 7.10 Can the registration/notification be completed online? 8.1 Is the appointment of a Data Protection Officer mandatory or optional? APP 7.1 encompasses not only the regulation of personal information for direct marketing but also its disclosure for this purpose. ASIC made use of historical forensic cybersecurity reports which raised significant gaps in the companys cybersecurity systems before the incident occurred, which may indicate a failure to remedy a known risk (and thus poor, if any, risk management). APP 1 is concerned with the use of personal information in an open and transparent manner. Refer to data minimisation above. whether the information or opinion is recorded in a material form or not.

Practice Areas > See question 11.3 for more detail on this case. MinterEllison, Tony Issa 1.4 What authority(ies) are responsible for data protection? For APP 8.2(a), the APP Guidelines mention that an overseas recipient may not be subject to a law or binding scheme where, for example: For APP 8.1(b), the APP Guidelines set out that the APP entity should provide the individual with a clear written or oral statement explaining the potential consequences of providing consent to the cross-border disclosure. The APRA is responsible for regulating powers in accordance with CPS 231 and CPS 234. In industries covered by the CDR scheme (see details under question 18.2 below), the CDR accreditation requirement is mandatory for all entities that receive consumer-specific data, including foreign legal entities that are subject to the Competition and Consumer Act 2010 (Cth). In respect to CDR accreditation under the CDR scheme is in respect of the receipt and holding of CDR data. Whistle-blowers are protected by the Corporations Act from civil, criminal or administrative liability, contractual or other remedy, contractual termination or victimisation. 8.8 Must the Data Protection Officer be named in a public-facing privacy notice or equivalent document? 12.3 Do transfers of personal data to other jurisdictions require registration/notification or prior approval from the relevant data protection authority(ies)? 17.2 Does the data protection authority have the power to issue a ban on a particular processing activity? 14.2 Are there limits on the purposes for which CCTV data may be used? The entity must do so as soon as practicable after completing the statement. 10.6 Is it lawful to purchase marketing lists from third parties? 13.2 Is anonymous reporting prohibited, strongly discouraged, or generally permitted?

Under APP 7, an organisation is prohibited from using or disclosing personal information for the purpose of direct marketing. In turn, Facebook was found to be in breach of APP 6 and APP 11.1 by sharing the data obtained through the This is Your Digital Life application without the consent of users and without taking reasonable steps to prevent unauthorised disclosure of personal information. are sent by an individual or organisation who is physically present in Australia, or whose central management is in Australia, at the time of sending; have been accessed by a computer, server or device located in Australia; are connected to an account-holder that is present in Australia when the message is accessed; or. 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. the recipient of the information is subject to a law, or binding scheme, that has the effect of protecting the information in a way that, overall, is at least substantially similar to the way in which the APPs protect the information; and, there are mechanisms that the individual can access to take action to enforce that protection of the law or binding scheme; or. Anthony Borgese Surveillance of changing rooms and bathrooms is prohibited. If so, which entities are responsible for ensuring that data are kept secure (e.g., controllers, processors, etc.)? In 2015, Australian Securities Investment Commission (ASIC) confirmed its stance in its Cyber Resilience: Health Check report, that cybersecurity falls squarely within a directors duties. At the time of writing, the public listing of accredited data recipients is available here: (Hyperlink). However, there are exceptions to this under APP 8.2: For the banking, insurance and superannuation industries, CPS 231 requires APRA-regulated entities to notify the APRA prior to entering into any off-shore outsourcing arrangement of a material business activity (including data processing activity). Right to complain to the relevant data protection authority(ies). There are no registration requirements in relation to the transfer of personal data. For the banking, insurance and superannuation industries: which are issued by the Australian Prudential Regulation Authority (APRA) under: In addition, the Competition and Consumer Act 2010 (Cth) also applies to specific sectors covered by its consumer data right (CDR) regime (further discussed under section 7 below). If no legal requirement exists, describe under what circumstances the relevant data protection authority(ies) expect(s) voluntary breach reporting. At work is defined as at a workplace of the employer (or a related corporation of the employer), regardless of whether the employee is actually performing work at the time, or at any other place while performing work for the employer (or a related corporation of the employer). APP 1 requires an APP entity to have a clearly expressed privacy policy which must contain information on how an individual may (i) access personal information about the individual that is held by the entity and seek the correction of such information, and (ii) complain about a breach of the APP and how the entity will deal with such a complaint. 7.5 What information must be included in the registration/notification (e.g., details of the notifying entity, affected categories of individuals, affected categories of personal data, processing purposes)? 6.1 What additional obligations apply to the processing of childrens personal data? For practitioners, the publications are useful in the formation of an early and high-level understanding on each of the relevant topics and jurisdictions GLG covers.

Yes; the Privacy Act requires the entity, if practicable to do so, to take reasonable steps to notify the contents of the statement described above to each individual to whom the information relates or who are at risk from the eligible date breach. 5.1 What are the key rights that individuals have in relation to the processing of their personal data? As part of this obligation, the business is required to ensure that other entities to which it discloses personal information also comply with the relevant legal requirements. Please see details of the sanctions under question 16.1 below. handling of internal and external privacy enquiries, privacy complaints, and requests for access to and correction of personal information; maintaining a record of the agencys personal information holdings; assisting with the preparation of privacy impact assessments; maintaining the agencys register of privacy impact assessments; and. 8.3 Is the Data Protection Officer protected from disciplinary measures, or other employment consequences, in respect of his or her role as a Data Protection Officer? Yes, there is sector-specific legislation impacting data protection, including those set out below. An example of this occurred in 2016, where the OAIC had obtained an enforceable undertaking from a Canadian-based media company due to discomfort expressed with the security of personal information collected, as well as compliance reporting, monitoring and enforcement. 7.12 How long does a typical registration/notification process take? 7.2 If such registration/notification is needed, must it be specific (e.g., listing all processing activities, categories of data, etc.) Once an individual has withdrawn consent, an APP entity can no longer rely on that past consent for any future use or disclosure of the individuals personal information. With respect to government agencies, failure to appoint a privacy officer as required by the Government Agencies APP Code would be a breach of that Code, which is a contravention of APP 1.2 and also an interference with the privacy of an individual under clause 26A of the Privacy Act. MinterEllison, Zoe Zhang To transfer data abroad, the OAIC expects that enforceable contracts requiring compliance with the APPs are drawn up. This requires that the organisation who purchases the marketing list from a third party ensures that the individuals on the list have consented to marketing or, where such consent is impractical to obtain, each communication provides the recipient with a simple means to opt out. Since 1 January 2020, all public companies, large proprietary companies and corporate trustees of registrable superannuation entities have been required to have a whistle-blower policy and to make it available to officers and employees of the company. This is defined as a number that is specified in the numbering scheme referred to in s. 454A of the Telecommunications Act 1997 (Cth) or in the numbering plan referred to in s. 455 of the Telecommunications Act 1997 (Cth) which is for use in connection with the supply of carriage services to the public in Australia. a body established or appointed by the Governor-General, or by a Minister; personal information about an individuals: membership of a professional or trade association; genetic information about an individual that is not otherwise health information; biometric information that is to be used for the purpose of automated biometric verification or biometric identification; or, there is unauthorised access to, or unauthorised disclosure of, personal information held by an entity (or loss of the information in circumstances where unauthorised access to or disclosure of the information is likely to occur); and, a reasonable person would conclude that the access, disclosure or loss is likely to result in serious harm to any of the individuals to whom the information relates. The information contained in the publications is credible, accurate as of the date of printing, and a reliable first-source when seeking the support of expert resources.William Glennon, Managing Partner - UnderwritersTrust Transaction & Risk Management LLP, 2002-2022 Copyright: ICLG.com | Privacy policy | Cookie policy, William Glennon, Managing Partner - UnderwritersTrust Transaction & Risk Management LLP, Economic Crime Prevention and Compliance London 2022, The Office of the Australian Information Commissioner (, The Australian Communications and Media Authority (, The Australian Competition and Consumer Commission (. Moreover, APP 11 denotes that an entity must take active steps to ensure that personal information no longer required (for the notified purpose) is deleted or de-identified. The Privacy Act applies to Australian Government agencies and organisations with an annual turnover of more than AU$3 million, as well as some other organisations (APP entities). For example, federal police, Commonwealth agencies and public sector agencies may only collect personal information if it is directly related to a function or activity of the agency. There is no qualification generally required by law in Australia. Although self-reporting can assist an entity in reducing the amount of any monetary penalty, it appears that Australian regulators may be becoming less willing to lend a sympathetic ear where has been a gross or repeated mishandling of data. The relevant concept is phrased as APP entity, which means an agency or organisation. The monitoring of employees is regulated at the state level. There is no general requirement by law on the responsibilities of the Data Protection Officer. Controller is not used in the Privacy Act. However, an APP entity will need to establish (on a case-by-case basis) whether an individual under the age of 18 has the capacity to consent. a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a Commonwealth enactment, not being: an incorporated company, society or association; or, an organisation that is registered under the. The entity must prepare a statement that sets out the identity and contact details of the entity, a description of the eligible data breach, the kinds of information concerned, and recommendations of the steps that individuals should take in response. The AFS licence holder was also ordered to pay ASICs costs of the proceedings, being AU$750,000. 7.6 What are the sanctions for failure to register/notify where required? Yes, registration for the CDR regime can be completed online. Under APP 4, if an APP entity receives unsolicited personal information, the entity must determine whether it could have solicited and collected the information under APP 3. There is no formal requirement regarding the appointment of a Data Protection Officer in general. Australia Chapter In response to this, the OAIC made a submission on 11 December 2020 which included a recommendation to amend APP 1 to require entities to appoint a privacy officer(s) and ensure that privacy officer functions are undertaken. Dealing with unsolicited personal information. Where the use of cookies rises to the level of enabling identification of an individual, restrictions of the APPs apply please refer to question 16.4 with reference to penalties for data security breaches. As discussed further in section 16 below, certain obligations arise when specific data breaches occur. The appointment of a Data Protection Officer, which is commonly referred to as a privacy officer in Australia, is optional in general. 7.1 Is there a legal obligation on businesses to register with or notify the data protection authority (or any other governmental body) in respect of its processing activities?

As a general rule, an individual under the age of 18 has the capacity to consent when they have sufficient understanding and maturity to understand what is being proposed. 8.5 Please describe any specific qualifications for the Data Protection Officer required by law. In respect of government agencies, the Government Agencies APP Code describes privacy officers as the primary point of contact for advice on privacy matters in a Government agency and requires Government agencies to ensure that the following privacy officer functions are carried out: 8.7 Must the appointment of a Data Protection Officer be registered/notified to the relevant data protection authority(ies)? A more recent example can be found in the proceedings brought by the OAIC against Facebook Inc in March 2020 (Facebook Inc v Australian Information Commissioner [2022] FCAFC 9) in relation to the use and disclosure of personal information collected through the use of This is Your Digital Life application. The phrase Data Subject is not used in the Privacy Act. However, it must comply with APP 7.3. With respect to anonymous reports, ASIC has noted that they will not be able to follow up with anonymous whistle-blowers for further information or steps to be taken. Based on such notice, the individual may choose whether or not to have their personal information collected. In respect to the CDR regime, accreditation through the ACCC is a pre-requisite to receiving or holding CDR data. 7.8 How frequently must registrations/notifications be renewed (if applicable)? Yes, the ACMA is the regulatory authority charged with enforcing the DNCR Act and Spam Act and it publishes actions it takes to enforce breaches of marketing restrictions covered by these Acts. Please describe which types of transfers require approval or notification, what those steps involve, and how long they typically take. an unincorporated association that has its central management and control in Australia or an external Territory. An eligible whistle-blower is protected under the Corporations Act if disclosure is made to the Australian Securities and Investments Commission (ASIC), the Australian Prudential Regulation Authority, a prescribed Commonwealth authority or eligible recipients including an officer, senior manager, auditor, actuary or any other person authorised by the regulated entity to receive such disclosures, or to a legal practitioner for the purpose of obtaining legal advice or representation relating to such protection. Under s. 7 of the Spam Act, the sending of commercial electronic messages with an Australian Link are regulated by the Spam Act. A big hot topic in this space is the proposed amendments to the Privacy Act. An eligible whistle-blower may choose to provide his or her name and contact details or report anonymously without affecting his or her eligibility for protection under the Corporations Act. Additionally, under APP 10, an entity must take reasonable steps to ensure the personal information that is used and disclosed is accurate, up to date, complete and relevant. However, where the use of cookies rises to the level of enabling identification of an individual, it will be subject to the restrictions of the APPs. 16.4 What are the maximum penalties for data security breaches? 13.1 What is the permitted scope of corporate whistle-blower hotlines (e.g., restrictions on the types of issues that may be reported, the persons who may submit a report, the persons whom a report may concern, etc.)? The Privacy Act does not contain an explicit right which protects an individuals personal information against automated decision-making and profiling. Describe how employers typically obtain consent or provide notice. 3.1 Do the data protection laws apply to businesses established in other jurisdictions? Yes; the Privacy Act requires entities to give a notification if they have reasonable grounds to believe that an eligible data breach has happened, or it is directed to do so by the Commissioner. a process or system for identifying the operational context of each of its critical assets; a principles-based risk identification process to identify risks to each of its critical assets; a risk management process or system that includes, for each material risk, a process or system to consider the risk and minimise or eliminate the risk as far as it is reasonably practicable to do so; and.

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