Commonwealth: Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth)

Privacy Amendment (Enhancing Privacy Protection) Act 2012 No. 197, 2012 Compilation No. 1 Compilation date: 12 March 2014 Includes amendments up to: Act No. 5, 2015 Registered: 6 March 2015 About this compilation This compilation This is a compilation of the Privacy Amendment (Enhancing Privacy Protection) Act 2012 that shows the text of the law as amended and in force on 12 March 2014 (the compilation date). This compilation was prepared on 6 March 2015. The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on ComLaw (www.comlaw.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on ComLaw for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on ComLaw for the compiled law. Self-repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Australian Privacy Principles Privacy Act 1988 Schedule 2—Credit reporting Privacy Act 1988 Schedule 3—Privacy codes Privacy Act 1988 Schedule 4—Other amendments of the Privacy Act 1988 Schedule 5—Amendment of other Acts Part 1—Amendments relating to the Australian Privacy Principles Acts Interpretation Act 1901 Aged Care Act 1997 A New Tax System (Family Assistance) (Administration) Act 1999 Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 AusCheck Act 2007 Australian Citizenship Act 2007 Australian Curriculum, Assessment and Reporting Authority Act 2008 Australian Passports Act 2005 Australian Prudential Regulation Authority Act 1998 Commonwealth Electoral Act 1918 Crimes Act 1914 Dairy Produce Act 1986 Defence Act 1903 Defence Force (Home Loans Assistance) Act 1990 Defence Home Ownership Assistance Scheme Act 2008 Defence Service Homes Act 1918 Education Services for Overseas Students Act 2000 Extradition Act 1988 Fair Work (Building Industry) Act 2012 Freedom of Information Act 1982 Healthcare Identifiers Act 2010 Higher Education Support Act 2003 Horse Disease Response Levy Collection Act 2011 Inspector of Transport Security Act 2006 Migration Act 1958 Military Rehabilitation and Compensation Act 2004 Mutual Assistance in Criminal Matters Act 1987 National Health Act 1953 National Health Reform Act 2011 National Health Security Act 2007 National Vocational Education and Training Regulator Act 2011 Olympic Insignia Protection Act 1987 Ombudsman Act 1976 Paid Parental Leave Act 2010 Personally Controlled Electronic Health Records Act 2012 Private Health Insurance Act 2007 Product Stewardship Act 2011 Quarantine Act 1908 Retirement Savings Accounts Act 1997 Social Security (Administration) Act 1999 Stronger Futures in the Northern Territory Act 2012 Superannuation Industry (Supervision) Act 1993 Supported Accommodation Assistance Act 1994 Telecommunications Act 1997 Telecommunications (Consumer Protection and Service Standards) Act 1999 Therapeutic Goods Act 1989 Trade Marks Act 1995 Veterans' Entitlements Act 1986 Part 2—Amendments relating to credit reporting Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 Australian Crime Commission Act 2002 Law Enforcement Integrity Commissioner Act 2006 National Consumer Credit Protection Act 2009 Taxation Administration Act 1953 Part 3—Amendments relating to codes Australian Information Commissioner Act 2010 Telecommunications Act 1997 Telecommunications (Consumer Protection and Service Standards) Act 1999 Part 4—Other amendments Australian Human Rights Commission Act 1986 Australian Information Commissioner Act 2010 Crimes Act 1914 Data‑matching Program (Assistance and Tax) Act 1990 Healthcare Identifiers Act 2010 National Health Act 1953 Retirement Savings Accounts Act 1997 Superannuation Industry (Supervision) Act 1993 Schedule 6—Application, transitional and savings provisions Part 1—Definitions Part 2—Provisions relating to Schedule 1 to this Act Part 3—Provisions relating to Schedule 2 to this Act Part 4—Provisions relating to Schedule 3 to this Act Part 5—Provisions relating to Schedule 4 to this Act Part 6—Provisions relating to Schedule 5 to this Act Part 7—Provisions relating to other matters Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to amend the law relating to privacy, and for other purposes 1 Short title This Act may be cited as the Privacy Amendment (Enhancing Privacy Protection) Act 2012. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 12 December 2012 2. Schedules 1 to 4 The day after the end of the period of 15 months beginning on the day this Act receives the Royal Assent. 12 March 2014 3. Schedule 5, items 1 to 155 The day after the end of the period of 15 months beginning on the day this Act receives the Royal Assent. 12 March 2014 10. Schedule 5, item 156 The day this Act receives the Royal Assent. 12 December 2012 11. Schedule 5, items 157 to 161 The day after the end of the period of 15 months beginning on the day this Act receives the Royal Assent. 12 March 2014 12. Schedule 5, item 162 The day this Act receives the Royal Assent. 12 December 2012 13. Schedule 5, items 163 to 180 The day after the end of the period of 15 months beginning on the day this Act receives the Royal Assent. 12 March 2014 16. Schedule 6, Part 1 The day this Act receives the Royal Assent. 12 December 2012 17. Schedule 6, Parts 2 and 3 The day after the end of the period of 15 months beginning on the day this Act receives the Royal Assent. 12 March 2014 18. Schedule 6, Part 4 The day this Act receives the Royal Assent. 12 December 2012 19. Schedule 6, Parts 5 to 7 The day after the end of the period of 15 months beginning on the day this Act receives the Royal Assent. 12 March 2014 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Australian Privacy Principles Privacy Act 1988 1 Section 3 Omit ", disclosure or transfer", substitute "or disclosure". 2 Section 3 (note) Omit "National", substitute "Australian". 3 Section 5 Repeal the section. 4 Subsection 6(1) (paragraph (i) of the definition of agency) Repeal the paragraph. 5 Subsection 6(1) Insert: 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. 6 Subsection 6(1) Insert: APP entity means an agency or organisation. 7 Subsection 6(1) Insert: APP privacy policy has the meaning given by Australian Privacy Principle 1.3. 8 Subsection 6(1) Insert: 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. 9 Subsection 6(1) Insert: Australian Privacy Principle has the meaning given by section 14. 10 Subsection 6(1) Insert: collects: an entity collects personal information only if the entity collects the personal information for inclusion in a record or generally available publication. 11 Subsection 6(1) Insert: Commonwealth record has the same meaning as in the Archives Act 1983. 12 Subsection 6(1) Insert: 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. 13 Subsection 6(1) Insert: de facto partner of an individual has the meaning given by the Acts Interpretation Act 1901. 14 Subsection 6(1) Insert: de‑identified: personal information is de‑identified if the information is no longer about an identifiable individual or an individual who is reasonably identifiable. 15 Subsection 6(1) (definition of eligible case manager) Repeal the definition. 16 Subsection 6(1) (after paragraph (b) of the definition of enforcement body) Insert: (ba) the CrimTrac Agency; or 17 Subsection 6(1) (after paragraph (c) of the definition of enforcement body) Insert: (ca) the Immigration Department; or 18 Subsection 6(1) (after paragraph (e) of the definition of enforcement body) Insert: (ea) the Office of the Director of Public Prosecutions, or a similar body established under a law of a State or Territory; or 19 Subsection 6(1) (after paragraph (l) of the definition of enforcement body) Insert: (la) the Corruption and Crime Commission of Western Australia; or 20 Subsection 6(1) Insert: 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. 21 Subsection 6(1) Insert: entity means: (a) an agency; or (b) an organisation; or (c) a small business operator. 22 Subsection 6(1) (definition of generally available publication) Repeal the definition, substitute: 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. 23 Subsection 6(1) Insert: 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. 24 Subsection 6(1) Insert: 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. 25 Subsection 6(1) Insert: 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. 26 Subsection 6(1) Insert: Immigration Department means the Department administered by the Minister administering the Migration Act 1958. 27 Subsection 6(1) (definition of Information Privacy Principle) Repeal the definition. 28 Subsection 6(1) (definition of IPP complaint) Repeal the definition. 29 Subsection 6(1) Insert: misconduct includes fraud, negligence, default, breach of trust, breach of duty, breach of discipline or any other misconduct in the course of duty. 30 Subsection 6(1) (definition of National Privacy Principle) Repeal the definition. 31 Subsection 6(1) Insert: 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. 32 Subsection 6(1) (definition of NPP complaint) Repeal the definition. 33 Subsection 6(1) Insert: overseas recipient, in relation to personal information, has the meaning given by Australian Privacy Principle 8.1. 34 Subsection 6(1) Insert: permitted general situation has the meaning given by section 16A. 35 Subsection 6(1) Insert: permitted health situation has the meaning given by section 16B. 36 Subsection 6(1) (definition of personal information) Repeal the definition, substitute: 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. 37 Subsection 6(1) (definition of record) Omit "means", substitute "includes". 38 Subsection 6(1) (paragraphs (b) and (c) of the definition of record) Repeal the paragraphs, substitute: (b) an electronic or other device; 39 Subsection 6(1) (at the end of the definition of record) Add: Note: For document, see section 2B of the Acts Interpretation Act 1901. 40 Subsection 6(1) Insert: responsible person has the meaning given by section 6AA. 41 Subsection 6(1) (subparagraph (a)(viii) of the definition of sensitive information) Omit "preferences", substitute "orientation". 42 Subsection 6(1) (at the end of the definition of sensitive information) Add: ; or (d) biometric information that is to be used for the purpose of automated biometric verification or biometric identification; or (e) biometric templates. 43 Subsection 6(1) (definition of solicit) Repeal the definition. 44 Subsection 6(1) Insert: 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. 45 Subsection 6(1) (definition of use) Repeal the definition. 46 Subsection 6(2) Repeal the subsection. 47 Paragraph 6(7)(a) Omit "IPP", substitute "APP". 48 Paragraph 6(7)(d) Repeal the paragraph. 49 Paragraph 6(7)(f) Omit "NPP", substitute "APP". 50 Subsection 6(10) Omit "and 16E", substitute "and 16". 51 Paragraph 6(10)(a) Omit "(within the meaning of the Acts Interpretation Act 1901)". 52 After section 6 Insert: 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. 53 Section 6A (heading) Repeal the heading, substitute: 6A Breach of an Australian Privacy Principle 54 Subsection 6A(1) (heading) Repeal the heading. 55 Subsection 6A(1) Omit "a National", substitute "an Australian". 56 Subsection 6A(1) Omit "that National Privacy Principle", substitute "that principle". 57 Subsection 6A(2) Omit "a National", substitute "an Australian". 58 Paragraph 6A(2)(b) Omit "the Principle", substitute "the principle". 59 Subsections 6A(3) and (4) Omit "a National", substitute "an Australian". 60 Subparagraphs 6C(4)(b)(ii) and (iii) Omit ", disclosure and transfer", substitute "and disclosure". 61 Subsection 6EA(1) Omit "(except section 16D)". 62 Paragraph 6F(3)(b) Omit ", disclosure and transfer", substitute "and disclosure". 63 Paragraph 7(1)(a) Omit "an eligible case manager or". 64 Paragraph 7(1)(cb) Repeal the paragraph. 65 Paragraphs 7(1)(d) and (e) Omit ", an eligible hearing service provider or an eligible case manager", substitute "or an eligible hearing service provider". 66 Paragraphs 7(1)(ea) and (eb) Repeal the paragraphs. 67 Subsection 7(2) Omit "Information Privacy Principles, the National", substitute "Australian". 68 Subsection 7B(1) (note) Omit "section 16E", substitute "section 16". 69 Subsections 7B(1) and (2) (notes) Omit "National", substitute "Australian". 70 Paragraph 8(2)(b) Omit "is not the record‑keeper in relation to", substitute "does not hold". 71 Subsection 8(2) Omit "of the record‑keeper in relation to", substitute "of the agency that holds". 72 Section 9 Repeal the section. 73 Section 10 (heading) Repeal the heading, substitute: 10 Agencies that are taken to hold a record 74 Subsections 10(1) to (3) Repeal the subsections. 75 Subsections 10(4) and (5) Omit "as the record‑keeper in relation to", substitute "to be the agency that holds". 76 Section 12 Repeal the section. 77 Subsection 13B(1) (note) Omit "National" (wherever occurring), substitute "Australian". 78 Subsection 13B(1) (note) Omit "Principle 2", substitute "Principle 6". 79 Subsection 13B(1A) (note) Omit "National", substitute "Australian". 80 Subsection 13C(1) (note) Omit "National" (wherever occurring), substitute "Australian". 81 Subsection 13C(1) (note) Omit "Principle 2", substitute "Principle 6". 82 Divisions 2 and 3 of Part III Repeal the Divisions, substitute: 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 Column 2 Column 3 Kind of entity Item applies to Condition(s) 1 APP entity (a) personal information; or (a) it is unreasonable or impracticable to obtain the individual's consent to the collection, use or disclosure; and (b) a government related identifier. (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 (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) a government related identifier. (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. 83 Section 37 (table items 6 and 7) Repeal the items. 84 Subsections 54(2) and 57(2) (definition of agency) Omit ", an eligible hearing service provider or an eligible case manager", substitute "or an eligible hearing service provider". 85 Paragraph 80H(2)(e) Omit "people who are responsible (within the meaning of subclause 2.5 of Schedule 3)", substitute "responsible persons". 86 Subparagraph 80P(1)(c)(v) Repeal the subparagraph, substitute: (v) a responsible person for the individual; and 87 Paragraph 80Q(1)(c) Omit "responsible for the individual (within the meaning of subclause 2.5 of Schedule 3)", substitute "a responsible person for the individual". 88 Subsection 95(1) After "privacy", insert "by agencies". 89 Subsections 95(2) and (4) Omit "Information" (wherever occurring), substitute "Australian". 90 Section 95A (heading) Repeal the heading, substitute: 95A Guidelines for Australian Privacy Principles about health information 91 Subsection 95A(1) Omit "National Privacy Principles (the NPPs)", substitute "Australian Privacy Principles". 92 Subsection 95A(2) Omit "subparagraph 2.1(d)(ii) of the NPPs", substitute "paragraph 16B(3)(c)". 93 Subsection 95A(3) Omit "NPPs (other than paragraph 2.1(d))", substitute "Australian Privacy Principles (disregarding subsection 16B(3))". 94 Subsection 95A(4) Omit "subparagraph 10.3(d)(iii) of the NPPs", substitute "subparagraph 16B(2)(d)(iii)". 95 Subsection 95A(5) Omit "NPPs (other than paragraph 10.3(d))", substitute "Australian Privacy Principles (disregarding subsection 16B(2))". 96 Section 95AA (heading) Repeal the heading, substitute: 95AA Guidelines for Australian Privacy Principles about genetic information 97 Subsection 95AA(1) Omit "National Privacy Principles (the NPPs)", substitute "Australian Privacy Principles". 98 Subsection 95AA(2) Omit "subparagraph 2.1(ea)(ii) of the NPPs", substitute "paragraph 16B(4)(c)". 99 Subsection 95AA(2) Omit "(whether or not the threat is imminent)". 100 Subsection 95B(1) Omit "Information", substitute "Australian". 101 Section 95C Omit "a National", substitute "an Australian". 102 Subsections 100(2) to (4) Repeal the subsections, substitute: (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. 103 Part X Repeal the Part. 104 Schedules 1 and 3 Repeal the Schedules, substitute: Schedule 1—Australian Privacy Principles Note: See section 14. Overview of the Australian Privacy Principles Overview This Schedule sets out the Australian Privacy Principles. Part 1 sets out principles that require APP entities to consider the privacy of personal information, including ensuring that APP entities manage personal information in an open and transparent way. Part 2 sets out principles that deal with the collection of personal information including unsolicited personal information. Part 3 sets out principles about how APP entities deal with personal information and government related identifiers. The Part includes principles about the use and disclosure of personal information and those identifiers. Part 4 sets out principles about the integrity of personal information. The Part includes principles about the quality and security of personal information. Part 5 sets out principles that deal with requests for access to, and the correction of, personal information. Australian Privacy Principles The Australian Privacy Principles are: Australian Privacy Principle 1—open and transparent management of personal information Australian Privacy Principle 2—anonymity and pseudonymity Australian Privacy Principle 3—collection of solicited personal information Australian Privacy Principle 4—dealing with unsolicited personal information Australian Privacy Principle 5—notification of the collection of personal information Australian Privacy Principle 6—use or disclosure of personal information Australian Privacy Principle 7—direct marketing Australian Privacy Principle 8—cross‑border disclosure of personal information Australian Privacy Principle 9—adoption, use or disclosure of government related identifiers Australian Privacy Principle 10—quality of personal information Australian Privacy Principle 11—security of personal information Australian Privacy Principle 12—access to personal information Australian Privacy Principle 13—correction of personal information Part 1—Consideration of personal information privacy 1 Australian Privacy Principle 1—open and transparent management of personal information 1.1 The object of this principle is to ensure that APP entities manage personal information in an open and transparent way. Compliance with the Australian Privacy Principles etc. 1.2 An APP entity must take such steps as are reasonable in the circumstances to implement practices, procedures and systems relating to the entity's functions or activities that: (a) will ensure that the entity complies with the Australian Privacy Principles and a registered APP code (if any) that binds the entity; and (b) will enable the entity to deal with inquiries or complaints from individuals about the entity's compliance with the Australian Privacy Principles or such a code. APP Privacy policy 1.3 An APP entity must have a clearly expressed and up‑to‑date policy (the APP privacy policy) about the management of personal information by the entity. 1.4 Without limiting subclause 1.3, the APP privacy policy of the APP entity must contain the following information: (a) the kinds of personal information that the entity collects and holds; (b) how the entity collects and holds personal information; (c) the purposes for which the entity collects, holds, uses and discloses personal information; (d) how an individual may access personal information about the individual that is held by the entity and seek the correction of such information; (e) how an individual may complain about a breach of the Australian Privacy Principles, or a registered APP code (if any) that binds the entity, and how the entity will deal with such a complaint; (f) whether the entity is likely to disclose personal information to overseas recipients; (g) if the entity is likely to disclose personal information to overseas recipients—the countries in which such recipients are likely to be located if it is practicable to specify those countries in the policy. Availability of APP privacy policy etc. 1.5 An APP entity must take such steps as are reasonable in the circumstances to make its APP privacy policy available: (a) free of charge; and (b) in such form as is appropriate. Note: An APP entity will usually make its APP privacy policy available on the entity's website. 1.6 If a person or body requests a copy of the APP privacy policy of an APP entity in a particular form, the entity must take such steps as are reasonable in the circumstances to give the person or body a copy in that form. 2 Australian Privacy Principle 2—anonymity and pseudonymity 2.1 Individuals must have the option of not identifying themselves, or of using a pseudonym, when dealing with an APP entity in relation to a particular matter. 2.2 Subclause 2.1 does not apply if, in relation to that matter: (a) the APP entity is required or authorised by or under an Australian law, or a court/tribunal order, to deal with individuals who have identified themselves; or (b) it is impracticable for the APP entity to deal with individuals who have not identified themselves or who have used a pseudonym. Part 2—Collection of personal information 3 Australian Privacy Principle 3—collection of solicited personal information Personal information other than sensitive information 3.1 If an APP entity is an agency, the entity must not collect personal information (other than sensitive information) unless the information is reasonably necessary for, or directly related to, one or more of the entity's functions or activities. 3.2 If an APP entity is an organisation, the entity must not collect personal information (other than sensitive information) unless the information is reasonably necessary for one or more of the entity's functions or activities. Sensitive information 3.3 An APP entity must not collect sensitive information about an individual unless: (a) the individual consents to the collection of the information and: (i) if the entity is an agency—the information is reasonably necessary for, or directly related to, one or more of the entity's functions or activities; or (ii) if the entity is an organisation—the information is reasonably necessary for one or more of the entity's functions or activities; or (b) subclause 3.4 applies in relation to the information. 3.4 This subclause applies in relation to sensitive information about an individual if: (a) the collection of the information is required or authorised by or under an Australian law or a court/tribunal order; or (b) a permitted general situation exists in relation to the collection of the information by the APP entity; or (c) the APP entity is an organisation and a permitted health situation exists in relation to the collection of the information by the entity; or (d) the APP entity is an enforcement body and the entity reasonably believes that: (i) if the entity is the Immigration Department—the collection of the information is reasonably necessary for, or directly related to, one or more enforcement related activities conducted by, or on behalf of, the entity; or (ii) otherwise—the collection of the information is reasonably necessary for, or directly related to, one or more of the entity's functions or activities; or (e) the APP entity is a non‑profit organisation and both of the following apply: (i) the information relates to the activities of the organisation; (ii) the information relates solely to the members of the organisation, or to individuals who have regular contact with the organisation in connection with its activities. Note: For permitted general situation, see section 16A. For permitted health situation, see section 16B. Means of collection 3.5 An APP entity must collect personal information only by lawful and fair means. 3.6 An APP entity must collect personal information about an individual only from the individual unless: (a) if the entity is an agency: (i) the individual consents to the collection of the information from someone other than the individual; or (ii) the entity is required or authorised by or under an Australian law, or a court/tribunal order, to collect the information from someone other than the individual; or (b) it is unreasonable or impracticable to do so. Solicited personal information 3.7 This principle applies to the collection of personal information that is solicited by an APP entity. 4 Australian Privacy Principle 4—dealing with unsolicited personal information 4.1 If: (a) an APP entity receives personal information; and (b) the entity did not solicit the information; the entity must, within a reasonable period after receiving the information, determine whether or not the entity could have collected the information under Australian Privacy Principle 3 if the entity had solicited the information. 4.2 The APP entity may use or disclose the personal information for the purposes of making the determination under subclause 4.1. 4.3 If: (a) the APP entity determines that the entity could not have collected the personal information; and (b) the information is not contained in a Commonwealth record; the entity must, as soon as practicable but only if it is lawful and reasonable to do so, destroy the information or ensure that the information is de‑identified. 4.4 If subclause 4.3 does not apply in relation to the personal information, Australian Privacy Principles 5 to 13 apply in relation to the information as if the entity had collected the information under Australian Privacy Principle 3. 5 Australian Privacy Principle 5—notification of the collection of personal information 5.1 At or before the time or, if that is not practicable, as soon as practicable after, an APP entity collects personal information about an individual, the entity must take such steps (if any) as are reasonable in the circumstances: (a) to notify the individual of such matters referred to in subclause 5.2 as are reasonable in the circumstances; or (b) to otherwise ensure that the individual is aware of any such matters. 5.2 The matters for the purposes of subclause 5.1 are as follows: (a) the identity and contact details of the APP entity; (b) if: (i) the APP entity collects the personal information from someone other than the individual; or (ii) the individual may not be aware that the APP entity has collected the personal information; the fact that the entity so collects, or has collected, the information and the circumstances of that collection; (c) if the collection of the personal information is required or authorised by or under an Australian law or a court/tribunal order—the fact that the collection is so required or authorised (including the name of the Australian law, or details of the court/tribunal order, that requires or authorises the collection); (d) the purposes for which the APP entity collects the personal information; (e) the main consequences (if any) for the individual if all or some of the personal information is not collected by the APP entity; (f) any other APP entity, body or person, or the types of any other APP entities, bodies or persons, to which the APP entity usually discloses personal information of the kind collected by the entity; (g) that the APP privacy policy of the APP entity contains information about how the individual may access the personal information about the individual that is held by the entity and seek the correction of such information; (h) that the APP privacy policy of the APP entity contains information about how the individual may complain about a breach of the Australian Privacy Principles, or a registered APP code (if any) that binds the entity, and how the entity will deal with such a complaint; (i) whether the APP entity is likely to disclose the personal information to overseas recipients; (j) if the APP entity is likely to disclose the personal information to overseas recipients—the countries in which such recipients are likely to be located if it is practicable to specify those countries in the notification or to otherwise make the individual aware of them. Part 3—Dealing with personal information 6 Australian Privacy Principle 6—use or disclosure of personal information Use or disclosure 6.1 If an APP entity holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondary purpose) unless: (a) the individual has consented to the use or disclosure of the information; or (b) subclause 6.2 or 6.3 applies in relation to the use or disclosure of the information. Note: Australian Privacy Principle 8 sets out requirements for the disclosure of personal information to a person who is not in Australia or an external Territory. 6.2 This subclause applies in relation to the use or disclosure of personal information about an individual if: (a) the individual would reasonably expect the APP entity to use or disclose the information for the secondary purpose and the secondary purpose is: (i) if the information is sensitive information—directly related to the primary purpose; or (ii) if the information is not sensitive information—related to the primary purpose; or (b) the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order; or (c) a permitted general situation exists in relation to the use or disclosure of the information by the APP entity; or (d) the APP entity is an organisation and a permitted health situation exists in relation to the use or disclosure of the information by the entity; or (e) the APP entity reasonably believes that the use or disclosure of the information is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body. Note: For permitted general situation, see section 16A. For permitted health situation, see section 16B. 6.3 This subclause applies in relation to the disclosure of personal information about an individual by an APP entity that is an agency if: (a) the agency is not an enforcement body; and (b) the information is biometric information or biometric templates; and (c) the recipient of the information is an enforcement body; and (d) the disclosure is conducted in accordance with the guidelines made by the Commissioner for the purposes of this paragraph. 6.4 If: (a) the APP entity is an organisation; and (b) subsection 16B(2) applied in relation to the collection of the personal information by the entity; the entity must take such steps as are reasonable in the circumstances to ensure that the information is de‑identified before the entity discloses it in accordance with subclause 6.1 or 6.2. Written note of use or disclosure 6.5 If an APP entity uses or discloses personal information in accordance with paragraph 6.2(e), the entity must make a written note of the use or disclosure. Related bodies corporate 6.6 If: (a) an APP entity is a body corporate; and (b) the entity collects personal information from a related body corporate; this principle applies as if the entity's primary purpose for the collection of the information were the primary purpose for which the related body corporate collected the information. Exceptions 6.7 This principle does not apply to the use or disclosure by an organisation of: (a) personal information for the purpose of direct marketing; or (b) government related identifiers. 7 Australian Privacy Principle 7—direct marketing Direct marketing 7.1 If an organisation holds personal information about an individual, the organisation must not use or disclose the information for the purpose of direct marketing. Note: An act or practice of an agency may be treated as an act or practice of an organisation, see section 7A. Exceptions—personal information other than sensitive information 7.2 Despite subclause 7.1, an organisation may use or disclose personal information (other than sensitive information) about an individual for the purpose of direct marketing if: (a) the organisation collected the information from the individual; and (b) the individual would reasonably expect the organisation to use or disclose the information for that purpose; and (c) the organisation provides a simple means by which the individual may easily request not to receive direct marketing communications from the organisation; and (d) the individual has not made such a request to the organisation. 7.3 Despite subclause 7.1, an organisation may use or disclose personal information (other than sensitive information) about an individual for the purpose of direct marketing if: (a) the organisation collected the information from: (i) the individual and the individual would not reasonably expect the organisation to use or disclose the information for that purpose; or (ii) someone other than the individual; and (b) either: (i) the individual has consented to the use or disclosure of the information for that purpose; or (ii) it is impracticable to obtain that consent; and (c) the organisation provides a simple means by which the individual may easily request not to receive direct marketing communications from the organisation; and (d) in each direct marketing communication with the individual: (i) the organisation includes a prominent statement that the individual may make such a request; or (ii) the organisation otherwise draws the individual's attention to the fact that the individual may make such a request; and (e) the individual has not made such a request to the organisation. Exception—sensitive information 7.4 Despite subclause 7.1, an organisation may use or disclose sensitive information about an individual for the purpose of direct marketing if the individual has consented to the use or disclosure of the information for that purpose. Exception—contracted service providers 7.5 Despite subclause 7.1, an organisation may use or disclose personal information for the purpose of direct marketing if: (a) the organisation is a contracted service provider for a Commonwealth contract; and (b) the organisation collected the information for the purpose of meeting (directly or indirectly) an obligation under the contract; and (c) the use or disclosure is necessary to meet (directly or indirectly) such an obligation. Individual may request not to receive direct marketing communications etc. 7.6 If an organisation (the first organisation) uses or discloses personal information about an individual: (a) for the purpose of direct marketing by the first organisation; or (b) for the purpose of facilitating direct marketing by other organisations; the individual may: (c) if paragraph (a) applies—request not to receive direct marketing communications from the first organisation; and (d) if paragraph (b) applies—request the organisation not to use or disclose the information for the purpose referred to in that paragraph; and (e) request the first organisation to provide its source of the information. 7.7 If an individual makes a request under subclause 7.6, the first organisation must not charge the individual for the making of, or to give effect to, the request and: (a) if the request is of a kind referred to in paragraph 7.6(c) or (d)—the first organisation must give effect to the request within a reasonable period after the request is made; and (b) if the request is of a kind referred to in paragraph 7.6(e)—the organisation must, within a reasonable period after the request is made, notify the individual of its source unless it is impracticable or unreasonable to do so. Interaction with other legislation 7.8 This principle does not apply to the extent that any of the following apply: (a) the Do Not Call Register Act 2006; (b) the Spam Act 2003; (c) any other Act of the Commonwealth, or a Norfolk Island enactment, prescribed by the regulations. 8 Australian Privacy Principle 8—cross‑border disclosure of personal information 8.1 Before an APP entity discloses personal information about an individual to a person (the overseas recipient): (a) who is not in Australia or an external Territory; and (b) who is not the entity or the individual; the entity must take such steps as are reasonable in the circumstances to ensure that the overseas recipient does not breach the Australian Privacy Principles (other than Australian Privacy Principle 1) in relation to the information. Note: In certain circumstances, an act done, or a practice engaged in, by the overseas recipient is taken, under section 16C, to have been done, or engaged in, by the APP entity and to be a breach of the Australian Privacy Principles. 8.2 Subclause 8.1 does not apply to the disclosure of personal information about an individual by an APP entity to the overseas recipient if: (a) the entity reasonably believes that: (i) 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 Australian Privacy Principles protect the information; and (ii) there are mechanisms that the individual can access to take action to enforce that protection of the law or binding scheme; or (b) both of the following apply: (i) the entity expressly informs the individual that if he or she consents to the disclosure of the information, subclause 8.1 will not apply to the disclosure; (ii) after being so informed, the individual consents to the disclosure; or (c) the disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order; or (d) a permitted general situation (other than the situation referred to in item 4 or 5 of the table in subsection 16A(1)) exists in relation to the disclosure of the information by the APP entity; or (e) the entity is an agency and the disclosure of the information is required or authorised by or under an international agreement relating to information sharing to which Australia is a party; or (f) the entity is an agency and both of the following apply: (i) the entity reasonably believes that the disclosure of the information is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body; (ii) the recipient is a body that performs functions, or exercises powers, that are similar to those performed or exercised by an enforcement body. Note: For permitted general situation, see section 16A. 9 Australian Privacy Principle 9—adoption, use or disclosure of government related identifiers Adoption of government related identifiers 9.1 An organisation must not adopt a government related identifier of an individual as its own identifier of the individual unless: (a) the adoption of the government related identifier is required or authorised by or under an Australian law or a court/tribunal order; or (b) subclause 9.3 applies in relation to the adoption. Note: An act or practice of an agency may be treated as an act or practice of an organisation, see section 7A. Use or disclosure of government related identifiers 9.2 An organisation must not use or disclose a government related identifier of an individual unless: (a) the use or disclosure of the identifier is reasonably necessary for the organisation to verify the identity of the individual for the purposes of the organisation's activities or functions; or (b) the use or disclosure of the identifier is reasonably necessary for the organisation to fulfil its obligations to an agency or a State or Territory authority; or (c) the use or disclosure of the identifier is required or authorised by or under an Australian law or a court/tribunal order; or (d) a permitted general situation (other than the situation referred to in item 4 or 5 of the table in subsection 16A(1)) exists in relation to the use or disclosure of the identifier; or (e) the organisation reasonably believes that the use or disclosure of the identifier is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body; or (f) subclause 9.3 applies in relation to the use or disclosure. Note 1: An act or practice of an agency may be treated as an act or practice of an organisation, see section 7A. Note 2: For permitted general situation, see section 16A. Regulations about adoption, use or disclosure 9.3 This subclause applies in relation to the adoption, use or disclosure by an organisation of a government related identifier of an individual if: (a) the identifier is prescribed by the regulations; and (b) the organisation is prescribed by the regulations, or is included in a class of organisations prescribed by the regulations; and (c) the adoption, use or disclosure occurs in the circumstances prescribed by the regulations. Note: There are prerequisites that must be satisfied before the matters mentioned in this subclause are prescribed, see subsections 100(2) and (3). Part 4—Integrity of personal information 10 Australian Privacy Principle 10—quality of personal information 10.1 An APP entity must take such steps (if any) as are reasonable in the circumstances to ensure that the personal information that the entity collects is accurate, up‑to‑date and complete. 10.2 An APP entity must take such steps (if any) as are reasonable in the circumstances to ensure that the personal information that the entity uses or discloses is, having regard to the purpose of the use or disclosure, accurate, up‑to‑date, complete and relevant. 11 Australian Privacy Principle 11—security of personal information 11.1 If an APP entity holds personal information, the entity 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. 11.2 If: (a) an APP entity holds personal information about an individual; and (b) the entity no longer needs the information for any purpose for which the information may be used or disclosed by the entity under this Schedule; and (c) the information is not contained in a Commonwealth record; and (d) the entity is not required by or under an Australian law, or a court/tribunal order, to retain the information; the entity must take such steps as are reasonable in the circumstances to destroy the information or to ensure that the information is de‑identified. Part 5—Access to, and correction of, personal information 12 Australian Privacy Principle 12—access to personal information Access 12.1 If an APP entity holds personal information about an individual, the entity must, on request by the individual, give the individual access to the information. Exception to access—agency 12.2 If: (a) the APP entity is an agency; and (b) the entity is required or authorised to refuse to give the individual access to the personal information by or under: (i) the Freedom of Information Act; or (ii) any other Act of the Commonwealth, or a Norfolk Island enactment, that provides for access by persons to documents; then, despite subclause 12.1, the entity is not required to give access to the extent that the entity is required or authorised to refuse to give access. Exception to access—organisation 12.3 If the APP entity is an organisation then, despite subclause 12.1, the entity is not required to give the individual access to the personal information to the extent that: (a) the entity reasonably believes that giving access would pose a serious threat to the life, health or safety of any individual, or to public health or public safety; or (b) giving access would have an unreasonable impact on the privacy of other individuals; or (c) the request for access is frivolous or vexatious; or (d) the information relates to existing or anticipated legal proceedings between the entity and the individual, and would not be accessible by the process of discovery in those proceedings; or (e) giving access would reveal the intentions of the entity in relation to negotiations with the individual in such a way as to prejudice those negotiations; or (f) giving access would be unlawful; or (g) denying access is required or authorised by or under an Australian law or a court/tribunal order; or (h) both of the following apply: (i) the entity has reason t