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Privacy Law Resources |
(1) For the purposes of this Act, an act or practicebreaches a National Privacy Principle if, and only if, it is contrary to, or inconsistent with, that National Privacy Principle.
No breach--contracted service provider
(2) An act or practice does not breach a National 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 underthe contract; and
(b) the act or practice is authorised by a provision of the contract that isinconsistent with the Principle.
No breach--disclosure to the Archives
(3) An act or practice does not breach a National Privacy Principle if the act or practice involves the disclosure by an organisation ofpersonal information in a record (as defined in the Archives Act 1983)solely for the purposes of enabling the Archives (as defined in that Act) todecide whether to accept, or to arrange, custody of the record.
No breach--act or practice outside Australia
(4) An act or practice does not breach a National Privacy Principle if:
(a) the act is done, or the practice is engaged in, outside Australia and theexternal Territories; and
(b) the act or practice is required by an applicable law of a foreigncountry.
Effect despite subsection (1)
(5) Subsections (2), (3) and (4) have effect despite subsection (1).
(1) For the purposes of this Act, an act or practicebreaches an approved privacy 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 an approvedprivacy 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 thecontract); and
(ii) for the purposes of meeting (directly or indirectly) an obligation underthe contract; and
(b) the act or practice is authorised by a provision of the contract that isinconsistent with the code.
No breach--disclosure to the Archives
(3) An act or practice does not breach an approvedprivacy code if the act or practice involves the disclosure by an organisationof personal information in a record (as defined in the Archives Act1983) solely for the purposes of enabling the Archives (as defined in thatAct) to decide whether to accept, or to arrange, custody of the record.
No breach--act or practice outside Australia
(4) An act or practice does not breach an approvedprivacy 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 foreigncountry.
Effect despite subsection (1)
(5) Subsections (2), (3) and (4) have effect despite subsection (1).
(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 orTerritory.
Note: Regulations may prescribe an instrumentality by reference toone or more classes of instrumentality. See subsection 46(2) of the ActsInterpretation Act 1901.Example: Regulations may prescribe an instrumentality of a State or Territorythat 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 bea different organisation.
Example: In addition to his or her personal capacity, an individualmay be the trustee of one or more trusts. In his or her personal capacity, heor she is one organisation. As trustee of each trust, he or she is a differentorganisation.What is a State or Territoryauthority?
(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 orappointed for a public purpose by or under a law of a State or Territory, otherthan:
(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 industrialdisputes; 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
(vi) a person holding an executive office mentioned in section 12 of theNorfolk Island Act 1979; or
(e) a person holding or performing the duties of an office established by orunder, or an appointment made under, a law of a State or Territory, other thanthe 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
(vi) a person holding an executive office mentioned in section 12 of theNorfolk Island Act 1979; or
(g) a State or Territory court.
Making regulations to stop instrumentalities being organisations
(4) Before the Governor-General makes regulations prescribing aninstrumentality of a State or Territory for the purposes of the definition oforganisation in subsection (1), the Minister must:
(a) be satisfied that the State or Territory has requested that theinstrumentality be prescribed for those purposes; and
(b) consider:
(i) whether treating the instrumentality as an organisation for the purposesof 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, disclosure and transfer of personal information by theinstrumentality; and
(iii) whether the law of the State or Territory regulates the collection,holding, use, correction, disclosure and transfer of personal information bythe instrumentality to a standard that is at least equivalent to the standardthat 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 theNorthern Territory (despite subsection 6(1)).
(1) A business is a small business if its annual turnoveris $3,000,000 or less.
What is the annual turnover of a business?
(2) The annual turnover of a business carried on by anorganisation or small business operator at a time (the test time)in a month (the test month) is:
(a) the current annual turnover at the test time of the organisation or operator worked out under subsection 188-15(1) of the A New Tax System(Goods and Services Tax) Act 1999, if the organisation or operator:
(i) has carried on the business for the 11 months before the test month; and
(ii) has not carried on another business in the 12 months before the testtime; or
(b) the amount that would be the current annual turnover at the test time ofthe organisation or operator worked out under that subsection disregardingsupplies (as defined in that Act) made or likely to be made by the organisationor operator otherwise than in the course of the business, if the organisationor operator:
(i) has carried on the business for the 11 months before the test month; and
(ii) has carried on another business in the 12 months before the test time;or
(c) the amount that would be the projected annual turnover at the test time ofthe organisation or operator worked out under subsection 188-20(1) of that Actdisregarding supplies (as defined in that Act) made or likely to be made by the organisation or operator otherwise than in the course of the business, if theorganisation or operator has not carried on the business for the 11 monthsbefore the test month.
What is a small business operator?
(3) A small business operator is an individual, bodycorporate, 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, sheor it:
(a) carries on a business that has had an annual turnover of more than$3,000,000 at any time 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;
(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 fora benefit, service or advantage; or
(d) provides a benefit, service or advantage to collect personal informationabout another individual from anyone else; or
(e) is a contracted service provider for a Commonwealth contract (whether ornot a party to the contract).
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 inparagraph (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) otherwisethan in the course of a business it carries on.
(1) This Act applies, with the prescribed modifications (if any), inrelation to a small business operator prescribed for the purposes of thissubsection as if the small business operator were an organisation.
Note 1: The regulations may prescribe different modifications ofthe Act for different small business operators. See subsection 33(3A) of theActs Interpretation Act 1901.Note 2: Regulations may prescribe a small business operator by reference to oneor more classes of small business operator. See subsection 46(2) of the Acts Interpretation Act 1901.Regulations treating a smallbusiness 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 operatorprescribed for the purposes of this subsection as if the small businessoperator were an organisation.
Note 1: The regulations may prescribe different modifications ofthe Act for different acts, practices or small business operators. Seesubsection 33(3A) of the Acts Interpretation Act 1901.Note 2: Regulations may prescribe an act, practice or small business operatorby reference to one or more classes of acts, practices or small business operators. See subsection 46(2) of the Acts Interpretation Act1901.What are modifications?
(3) In this section:
modifications includes additions, omissions and substitutions.
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 underthis Act the small business operator, act or practice; and
(b) consult the Commissioner about the desirability of regulating under thisAct the matters described in paragraph (a).
(1) This Act applies, with the prescribed modifications (if any), inrelation to a prescribed State or Territory authority or a prescribed instrumentality of a State or Territory (except an instrumentality that is anorganisation because of section 6C) as if the authority or instrumentality werean 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 referenceto one or more classes of authority or instrumentality. See subsection 46(2) ofthe Acts Interpretation Act 1901.What aremodifications?
(2) In this section:
modifications includes additions, omissions and substitutions.
Making regulations to treat instrumentality etc. as organisation
(3) Before the Governor-General makes regulations prescribing a Stateor 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 theauthority or instrumentality be prescribed for those purposes; and
(b) consult the Commissioner about the desirability of regulating under thisAct the collection, holding, use, correction, disclosure and transfer of personal information by the authority or instrumentality.
Note: The heading to section 7 is altered by inserting ", organisations"after "agencies".
(ee) an act done, or a practice engaged in, by an organisation, other than anexempt act or exempt practice (see sections 7B and 7C);
(a) the act or practice were an act done, or practice engaged in, by anorganisation; and
(b) the agency mentioned in that subsection were the organisation.
(2) Subsection (1) applies to acts done, and practices engaged in, by aprescribed agency. Regulations for this purpose may prescribe an agency only ifit 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 ofSchedule 2 to the Freedom of Information Act 1982 in relation todocuments in respect of its commercial activities or the commercial activities of another entity; and
(b) relate to those commercial activities.
00 Privacy Act 1988 00
(4) This section has effect despite subparagraph 7(1)(a)(i), paragraph 7(1)(c)and subsection 7(2).
(5) In this section:
modifications includes additions, omissions and substitutions.
(1) An act done, or practice engaged in, by an organisation that is anindividual is exempt for the purposes of paragraph 7(1)(ee) ifthe act is done, or the practice is engaged in, other than in the course of abusiness carried on by the individual.
Note: See also section 16E which provides that the National PrivacyPrinciples do not apply for the purposes of, or in connection with, anindividual's personal, family or household affairs.Organisation acting under Commonwealth contract
(2) An act done, or practice engaged in, by an organisation isexempt 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 acontracted service provider for a Commonwealth contract; and
(c) the act is done, or the practice is engaged in, otherwise than for thepurposes of meeting (directly or indirectly) an obligation under a Commonwealthcontract for which the organisation is the contracted service provider.
Note: This puts the organisation in the same position as a smallbusiness operator as far as its activities that are not for the purposes of aCommonwealth contract are concerned, so the organisation need not comply withthe National Privacy Principles or a binding approved privacy code in relationto those activities.Employee records
(3) An act done, or practice engaged in, by an organisation that is orwas 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 theindividual; and
(b) an employee record held by the organisation and relating to theindividual.
Journalism
(4) An act done, or practice engaged in, by a media organisation isexempt for the purposes of paragraph 7(1)(ee) if the act is done,or the practice is engaged in, by the organisation in the course ofjournalism.
Organisation acting under State contract
(5) An act done, or practice engaged in, by an organisation isexempt 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.
(1) An act done, or practice engaged in, by an organisation (thepolitical representative) consisting of a member of a Parliament,or a councillor (however described) of a local government authority, isexempt 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 orTerritory; or
(c) the participation by the political representative in another aspect of thepolitical process.
Contractors for political representatives etc.
(2) An act done, or practice engaged in, by an organisation (thecontractor) 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 thecontractor and a registered political party or a political representativedescribed 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 orTerritory;
(iii) the participation in another aspect of the political process by theregistered political party or political representative;
(iv) facilitating acts or practices of the registered political party orpolitical 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 (thesubcontractor) is exempt for the purposes ofparagraph 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 thesubcontractor 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 anorganisation for or on behalf of a registered political party and with theauthority of the party is exempt for the purposes of paragraph7(1)(ee) if the act is done or the practice is engaged in for any purpose inconnection 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 orTerritory;
(c) the participation in another aspect of the political process by theregistered political party;
(d) facilitating acts or practices of the registered political party for apurpose 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 Actin 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 aState or Territory, relating to elections to a Parliament or to a localgovernment authority.
Parliament means:
(a) the Parliament of the Commonwealth; or
(b) a State Parliament; or
(c) the legislature of a Territory.
00 Privacy Act 1988 00
Note: The heading to section 8 is altered by inserting ", organisation"after "agency".
(3) For the purposes of the application of this Act in relation to anorganisation that is a partnership:
(a) an act done or practice engaged in by a partner is taken to have been doneor engaged in by the organisation; and
(b) a communication (including a complaint, notice, request or disclosure ofinformation) made to a partner is taken to have been made to theorganisation.
(4) For the purposes of the application of this Act in relation to anorganisation that is an unincorporated association:
(a) an act done or practice engaged in by a member of the committee ofmanagement of the association is taken to have been done or engaged in by theorganisation; and
(b) a communication (including a complaint, notice, request or disclosure ofinformation) made to a member of the committee of management of the associationis taken to have been made to the organisation.
(5) For the purposes of the application of this Act in relation to anorganisation that is a trust:
(a) an act done or practice engaged in by a trustee is taken to have been doneor engaged in by the organisation; and
(b) a communication (including a complaint, notice or request or disclosure ofinformation) made to a trustee is taken to have been made to the organisation.
(2) This Act also has the effect it would have if its operation in relation toorganisations were expressly confined to an operation to give effect to theInternational Covenant on Civil and Political Rights, and in particular Article17 of the Covenant.
Note: The text of the International Covenant on Civil and PoliticalRights is set out in Australian Treaty Series 1980 No. 23. In 2000, this wasavailable in the Australian Treaties Library of the Department of ForeignAffairs and Trade, accessible on the Internet through that Department'sworld-wide web site.(3) This Act also has the effect it wouldhave if its operation in relation to organisations were expressly confined toacts or practices covered by subsection 5B(1) (which deals with acts andpractices outside Australia and the external Territories by organisations).
(4) This Act also has the effect it would have if its operation in relation toorganisations were expressly confined to organisations that are corporations.
(5) This Act also has the effect it would have if its operation in relation toorganisations were expressly confined to acts or practices of organisationstaking 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 2Territories.
(6) This Act also has the effect it would have if its operation in relation to organisations were expressly confined to acts or practices of organisations taking place using a postal, telegraphic, telephonic or other like servicewithin the meaning of paragraph 51(v) of the Constitution.
(7) This Act also has the effect it would have if its operation in relation toorganisations were expressly confined to acts or practices of organisationstaking place in a Territory.
(8) This Act also has the effect it would have if its operation in relation toorganisations were expressly confined to acts or practices of organisationstaking place in a place acquired by the Commonwealth for public purposes.
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