Commonwealth: Privacy Amendment (Private Sector) Act 2000 (Cth)

Privacy Amendment (Private Sector) Act 2000 No. 155, 2000 Privacy Amendment (Private Sector) Act 2000 No. 155, 2000 An Act to amend the law relating to privacy, and for related purposes Contents 1 Short title................................... 2 Commencement............................... 3 Objects.................................... 4 Schedule(s).................................. Schedule 1—Amendment of the Privacy Act 1988 Schedule 2—Amendment of other Acts Customs Act 1901 Telecommunications Act 1997 Telecommunications (Consumer Protection and Service Standards) Act 1999 Schedule 3—Disclosures to intelligence bodies Australian Security Intelligence Organisation Act 1979 Privacy Act 1988 Privacy Amendment (Private Sector) Act 2000 No. 155, 2000 An Act to amend the law relating to privacy, and for related purposes [Assented to 21 December 2000] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Privacy Amendment (Private Sector) Act 2000. 2 Commencement (1) Subject to this section, this Act commences on the later of the following days (or either of them if they are the same): (a) the first day after the end of the period of 12 months beginning on the day on which this Act receives the Royal Assent; (b) 1 July 2001. (2) Schedule 3 commences on the day on which this Act receives the Royal Assent. 3 Objects The main objects of this Act are: (a) to establish a single comprehensive national scheme providing, through codes adopted by private sector organisations and National Privacy Principles, for the appropriate collection, holding, use, correction, disclosure and transfer of personal information by those organisations; and (b) to do so in a way that: (i) meets international concerns and Australia's international obligations relating to privacy; and (ii) recognises individuals' interests in protecting their privacy; and (iii) recognises important human rights and social interests that compete with privacy, including the general desirability of a free flow of information (through the media and otherwise) and the right of business to achieve its objectives efficiently. 4 Schedule(s) Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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—Amendment of the Privacy Act 1988 1 Section 3 Omit "interferences with the privacy of persons", substitute "the collection, holding, use, correction, disclosure or transfer of personal information". 2 At the end of section 3 Add: Note: Such a law can have effect for the purposes of the provisions of the National Privacy Principles that regulate the handling of personal information by organisations by reference to the effect of other laws. 3 At the end of Part I Add: 5B Extra‑territorial operation of Act Application to overseas acts and practices of organisations (1) This Act (except Divisions 4 and 5 of Part III and Part IIIA) and approved privacy codes extend to an act done, or practice engaged in, outside Australia and the external Territories by an organisation if: (a) the act or practice relates to personal information about an Australian citizen or a person whose continued presence in Australia is not subject to a limitation as to time imposed by law; and (b) the requirements of subsection (2) or (3) are met. Note: The act or practice overseas will not breach a National Privacy Principle or approved privacy code or be an interference with the privacy of an individual if the act or practice is required by an applicable foreign law. See sections 6A, 6B and 13A. Organisational link with Australia (2) The organisation must be: (a) an Australian citizen; or (b) a person whose continued presence in Australia is not subject to a limitation as to time imposed by law; or (c) a partnership formed in Australia or an external Territory; or (d) a trust created in Australia or an external Territory; or (e) a body corporate incorporated in Australia or an external Territory; or (f) an unincorporated association that has its central management and control in Australia or an external Territory. Other link with Australia (3) All of the following conditions must be met: (a) the organisation is not described in subsection (2); (b) the organisation carries on business in Australia or an external Territory; (c) the personal information was collected or held by the organisation in Australia or an external Territory, either before or at the time of the act or practice. Power to deal with complaints about overseas acts and practices (4) Part V of this Act has extra‑territorial operation so far as that Part relates to complaints and investigation concerning acts and practices to which this Act extends because of subsection (1). Note: This lets the Commissioner take action overseas to investigate complaints and lets the ancillary provisions of Part V operate in that context. 4 Subsection 6(1) Insert: annual turnover of a business has the meaning given by section 6DA. 5 Subsection 6(1) Insert: approved privacy code means: (a) a privacy code approved by the Commissioner under section 18BB; or (b) a privacy code approved by the Commissioner under section 18BB with variations approved by the Commissioner under section 18BD. 6 Subsection 6(1) Insert: breach an approved privacy code has the meaning given by section 6B. 7 Subsection 6(1) Insert: breach an Information Privacy Principle has a meaning affected by subsection 6(2). 8 Subsection 6(1) Insert: breach a National Privacy Principle has the meaning given by section 6A. 9 Subsection 6(1) Insert: code complaint means a complaint about an act or practice that, if established, would be an interference with the privacy of the complainant because it breached an approved privacy code. 10 Subsection 6(1) Insert: Commonwealth contract means a contract, to which the Commonwealth or an agency is or was a party, under which services are to be, or were to be, provided to an agency. Note: See also subsection (9) about provision of services to an agency. 11 Subsection 6(1) Insert: contracted service provider, for a government contract, means: (a) an organisation that is or was a party to the government contract and that is or was responsible for the provision of services to an agency or a State or Territory authority under the government contract; or (b) a subcontractor for the government contract. 12 Subsection 6(1) Insert: employee record, in relation to an employee, means a record of personal information relating to the employment of the employee. Examples of personal information relating to the employment of the employee are health information about the employee and personal information about all or any of the following: (a) the engagement, training, disciplining or resignation of the employee; (b) the termination of the employment of the employee; (c) the terms and conditions of employment of the employee; (d) the employee's personal and emergency contact details; (e) the employee's performance or conduct; (f) the employee's hours of employment; (g) the employee's salary or wages; (h) the employee's membership of a professional or trade association; (i) the employee's trade union membership; (j) the employee's recreation, long service, sick, personal, maternity, paternity or other leave; (k) the employee's taxation, banking or superannuation affairs. 13 Subsection 6(1) Insert: enforcement body means: (a) the Australian Federal Police; or (b) the National Crime Authority; or (c) the Australian Customs Service; or (d) the Australian Prudential Regulation Authority; or (e) the Australian Securities and Investments Commission; or (f) another agency, to the extent that it is responsible for administering, or performing a function under, a law that imposes a penalty or sanction or a prescribed law; or (g) another agency, to the extent that it is responsible for administering a law relating to the protection of the public revenue; or (h) a police force or service of a State or a Territory; or (i) the New South Wales Crime Commission; or (j) the Independent Commission Against Corruption of New South Wales; or (k) the Police Integrity Commission of New South Wales; or (l) the Criminal Justice Commission of Queensland; or (m) another prescribed authority or body that is established under a law of a State or Territory to conduct criminal investigations or inquiries; or (n) a State or Territory authority, to the extent that it is responsible for administering, or performing a function under, a law that imposes a penalty or sanction or a prescribed law; or (o) a State or Territory authority, to the extent that it is responsible for administering a law relating to the protection of the public revenue. 14 Subsection 6(1) (definition of generally available publication) After "other publication", insert "(however published)". 15 Subsection 6(1) Insert: government contract means a Commonwealth contract or a State contract. 16 Subsection 6(1) Insert: health information means: (a) information or an opinion about: (i) the health or a disability (at any time) of an individual; or (ii) an individual's expressed wishes about the future provision of health services to him or her; or (iii) a health service provided, or to be provided, to an individual; that is also personal information; or (b) other personal information collected to provide, or in providing, a health service; or (c) other personal information about an individual collected in connection with the donation, or intended donation, by the individual of his or her body parts, organs or body substances. 17 Subsection 6(1) Insert: health service means: (a) an activity performed in relation to an individual that is intended or claimed (expressly or otherwise) by the individual or the person performing it: (i) to assess, record, maintain or improve the individual's health; or (ii) to diagnose the individual's illness or disability; or (iii) to treat the individual's illness or disability or suspected illness or disability; or (b) the dispensing on prescription of a drug or medicinal preparation by a pharmacist. 19 Subsection 6(1) Insert: media organisation means an organisation whose activities consist of or include the collection, preparation for dissemination or dissemination of the following material for the purpose of making it available to the public: (a) material having the character of news, current affairs, information or a documentary; (b) material consisting of commentary or opinion on, or analysis of, news, current affairs, information or a documentary. 20 Subsection 6(1) Insert: National Privacy Principle means a clause of Schedule 3. A reference in this Act to a National Privacy Principle by number is a reference to the clause of Schedule 3 with that number. 21 Subsection 6(1) Insert: NPP complaint means a complaint about an act or practice that, if established, would be an interference with the privacy of the complainant because it breached a National Privacy Principle. 22 Subsection 6(1) Insert: organisation has the meaning given by section 6C. 22A Subsection 6(1) Insert: principal executive, of an agency, has a meaning affected by section 37. 23 Subsection 6(1) Insert: privacy code means a written code regulating acts and practices that affect privacy. 24 Subsection 6(1) (at the end of paragraphs (a), (d), (e) and (f) of the definition of record) Add "or". 25 Subsection 6(1) (after paragraph (f) of the definition of record) Insert: (fa) records (as defined in the Archives Act 1983) in the custody of the Archives (as defined in that Act) in relation to which the Archives has entered into arrangements with a person other than a Commonwealth institution (as defined in that Act) providing for the extent to which the Archives or other persons are to have access to the records; or 26 Subsection 6(1) Insert: registered political party means a political party registered under Part XI of the Commonwealth Electoral Act 1918. 27 Subsection 6(1) Insert: sensitive information means: (a) information or an opinion about an individual's: (i) racial or ethnic origin; or (ii) political opinions; or (iii) membership of a political association; or (iv) religious beliefs or affiliations; or (v) philosophical beliefs; or (vi) membership of a professional or trade association; or (vii) membership of a trade union; or (viii) sexual preferences or practices; or (ix) criminal record; that is also personal information; or (b) health information about an individual. 28 Subsection 6(1) Insert: small business has the meaning given by section 6D. 29 Subsection 6(1) Insert: small business operator has the meaning given by section 6D. 30 Subsection 6(1) Insert: State contract means a contract, to which a State or Territory or State or Territory authority is or was a party, under which services are to be, or were to be, provided to a State or Territory authority. Note: See also subsection (9) about provision of services to a State or Territory authority. 31 Subsection 6(1) Insert: State or Territory authority has the meaning given by section 6C. 32 Subsection 6(1) Insert: subcontractor, for a government contract, means an organisation: (a) that is or was a party to a contract (the subcontract): (i) with a contracted service provider for the government contract (within the meaning of paragraph (a) of the definition of contracted service provider); or (ii) with a subcontractor for the government contract (under a previous application of this definition); and (b) that is or was responsible under the subcontract for the provision of services to an agency or a State or Territory authority, or to a contracted service provider for the government contract, for the purposes (whether direct or indirect) of the government contract. 33 Subsection 6(1) Insert: temporary public interest determination means a determination made under section 80A. 34 At the end of subsection 6(7) Add: ; or (c) being both a file number complaint and a code complaint; or (d) being both a file number complaint and an NPP complaint; or (e) being both a code complaint and a credit reporting complaint; or (f) being both an NPP complaint and a credit reporting complaint. 35 Subsection 6(8) Repeal the subsection, substitute: (8) For the purposes of this Act, the question whether bodies corporate are related to each other is determined in the manner in which that question is determined under the Corporations Law. (9) To avoid doubt, for the purposes of this Act, services provided to an agency or a State or Territory authority include services that consist of the provision of services to other persons in connection with the performance of the functions of the agency or State or Territory authority. 36 After section 6 Insert: 6A Breach of a National Privacy Principle Breach if contrary to, or inconsistent with, Principle (1) For the purposes of this Act, an act or practice breaches 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 under the contract; and (b) the act or practice is authorised by a provision of the contract that is inconsistent with the Principle. No breach—disclosure to the Archives (3) An act or practice does not breach a National Privacy Principle if the act or practice involves the disclosure by an organisation of personal information in a record (as defined in the Archives Act 1983) solely for the purposes of enabling the Archives (as defined in that Act) 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 a National Privacy Principle if: (a) the act is done, or the practice is engaged in, outside Australia and the external Territories; and (b) the act or practice is required by an applicable law of a foreign country. Effect despite subsection (1) (5) Subsections (2), (3) and (4) have effect despite subsection (1). 6B Breach of an approved privacy code Breach if contrary to, or inconsistent with, code (1) For the purposes of this Act, an act or practice breaches 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 approved privacy code if: (a) the act is done, or the practice is engaged in: (i) by an organisation that is a contracted service provider for a Commonwealth contract (whether or not the organisation is a party to the contract); and (ii) for the purposes of meeting (directly or indirectly) an obligation under the contract; and (b) the act or practice is authorised by a provision of the contract that is inconsistent with the code. No breach—disclosure to the Archives (3) An act or practice does not breach an approved privacy code if the act or practice involves the disclosure by an organisation of personal information in a record (as defined in the Archives Act 1983) solely for the purposes of enabling the Archives (as defined in that Act) 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 approved privacy code if: (a) the act is done, or the practice is engaged in, outside Australia and the external Territories; and (b) the act or practice is required by an applicable law of a foreign country. Effect despite subsection (1) (5) Subsections (2), (3) and (4) have effect despite subsection (1). 6C Organisations What is an organisation? (1) In this Act: organisation means: (a) an individual; or (b) a body corporate; or (c) a partnership; or (d) any other unincorporated association; or (e) a trust; that is not a small business operator, a registered political party, an agency, a State or Territory authority or a prescribed instrumentality of a State or Territory. Note: Regulations may prescribe an instrumentality by reference to one or more classes of instrumentality. See subsection 46(2) of the Acts Interpretation Act 1901. Example: Regulations may prescribe an instrumentality of a State or Territory that is an incorporated company, society or association and therefore not a State or Territory authority. Legal person treated as different organisations in different capacities (2) A legal person can have a number of different capacities in which the person does things. In each of those capacities, the person is taken to be a different organisation. Example: In addition to his or her personal capacity, an individual may be the trustee of one or more trusts. In his or her personal capacity, he or she is one organisation. As trustee of each trust, he or she is a different organisation. What is a State or Territory authority? (3) In this Act: State or Territory authority means: (a) a State or Territory Minister; or (b) a Department of State of a State or Territory; or (c) a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a law of a State or Territory, other than: (i) an incorporated company, society or association; or (ii) an association of employers or employees that is registered or recognised under a law of a State or Territory dealing with the resolution of industrial disputes; or (d) a body established or appointed, otherwise than by or under a law of a State or Territory, by: (i) a Governor of a State; or (ii) the Australian Capital Territory Executive; or (iii) the Administrator of the Northern Territory; or (iv) the Administrator of Norfolk Island; or (v) a State or Territory Minister; or (vi) a person holding an executive office mentioned in section 12 of the Norfolk Island Act 1979; or (e) a person holding or performing the duties of an office established by or under, or an appointment made under, a law of a State or Territory, other than the office of head of a State or Territory Department (however described); or (f) a person holding or performing the duties of an appointment made, otherwise than under a law of a State or Territory, by: (i) a Governor of a State; or (ii) the Australian Capital Territory Executive; or (iii) the Administrator of the Northern Territory; or (iv) the Administrator of Norfolk Island; or (v) a State or Territory Minister; or (vi) a person holding an executive office mentioned in section 12 of the Norfolk 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 an instrumentality of a State or Territory for the purposes of the definition of organisation in subsection (1), the Minister must: (a) be satisfied that the State or Territory has requested that the instrumentality be prescribed for those purposes; and (b) consider: (i) whether treating the instrumentality as an organisation for the purposes of this Act adversely affects the government of the State or Territory; and (ii) the desirability of regulating under this Act the collection, holding, use, correction, disclosure and transfer of personal information by the instrumentality; and (iii) whether the law of the State or Territory regulates the collection, holding, use, correction, disclosure and transfer of personal information by the instrumentality to a standard that is at least equivalent to the standard that would otherwise apply to the instrumentality under this Act; and (c) consult the Commissioner about the matters mentioned in subparagraphs (b)(ii) and (iii). State does not include Territory (5) In this section: State does not include the Australian Capital Territory or the Northern Territory (despite subsection 6(1)). 6D Small business and small business operators What is a small business? (1) A business is a small business at a time (the test time) in a financial year (the current year) if its annual turnover for the previous financial year is $3,000,000 or less. Test for new business (2) However, if there was no time in the previous financial year when the business was carried on, the business is a small business at the test time only if its annual turnover for the current year is $3,000,000 or less. What is a small business operator? (3) A small business operator is an individual, body corporate, partnership, unincorporated association or trust that: (a) carries on one or more small businesses; and (b) does not carry on a business that is not a small business. Entities that are not small business operators (4) However, an individual, body corporate, partnership, unincorporated association or trust is not a small business operator if he, she or it: (a) carries on a business that has had an annual turnover of more than $3,000,000 for a financial year that has ended after the later of the following: (i) the time he, she or it started to carry on the business; (ii) the commencement of this section; or (b) provides a health service to another individual and holds any health information except in an employee record; or (c) discloses personal information about another individual to anyone else for a benefit, service or advantage; or (d) provides a benefit, service or advantage to collect personal information about another individual from anyone else; or (e) is a contracted service provider for a Commonwealth contract (whether or not a party to the contract). Private affairs of small business operators who are individuals (5) Subsection (4) does not prevent an individual from being a small business operator merely because he or she does something described in paragraph (4)(b), (c) or (d): (a) otherwise than in the course of a business he or she carries on; and (b) only for the purposes of, or in connection with, his or her personal, family or household affairs. Non‑business affairs of other small business operators (6) Subsection (4) does not prevent a body corporate, partnership, unincorporated association or trust from being a small business operator merely because it does something described in paragraph (4)(b), (c) or (d) otherwise than in the course of a business it carries on. Disclosure compelled or made with consent (7) Paragraph (4)(c) does not prevent an individual, body corporate, partnership, unincorporated association or trust from being a small business operator only because he, she or it discloses personal information about another individual: (a) with the consent of the other individual; or (b) as required or authorised by or under legislation. Collection with consent or under legislation (8) Paragraph (4)(d) does not prevent an individual, body corporate, partnership, unincorporated association or trust from being a small business operator only because he, she or it: (a) collects personal information about another individual from someone else: (i) with the consent of the other individual; or (ii) as required or authorised by or under legislation; and (b) provides a benefit, service or advantage to be allowed to collect the information. Related bodies corporate (9) Despite subsection (3), a body corporate is not a small business operator if it is related to a body corporate that carries on a business that is not a small business. 6DA What is the annual turnover of a business? What is the annual turnover of a business for a financial year? (1) The annual turnover of a business for a financial year is the total of the following that is earned in the year in the course of the business: (a) the proceeds of sales of goods and/or services; (b) commission income; (c) repair and service income; (d) rent, leasing and hiring income; (e) government bounties and subsidies; (f) interest, royalties and dividends; (g) other operating income. Note: The annual turnover for a financial year of a business carried on by an entity that does not carry on another business will often be similar to the total of the instalment income the entity notifies to the Commissioner of Taxation for the 4 quarters in the year (or for the year, if the entity pays tax in annual instalments). (2) However, if a business has been carried on for only part of a financial year, its annual turnover for the financial year is the amount worked out using the formula: 6E Small business operator treated as organisation Regulations treating a small business operator as an organisation (1) This Act applies, with the prescribed modifications (if any), in relation to a small business operator prescribed for the purposes of this subsection as if the small business operator were an organisation. Note 1: The regulations may prescribe different modifications of the Act for different small business operators. See subsection 33(3A) of the Acts Interpretation Act 1901. Note 2: Regulations may prescribe a small business operator by reference to one or more classes of small business operator. See subsection 46(2) of the Acts Interpretation Act 1901. Regulations treating a small business operator as an organisation for particular acts or practices (2) This Act also applies, with the prescribed modifications (if any), in relation to the prescribed acts or practices of a small business operator prescribed for the purposes of this subsection as if the small business operator were an organisation. Note 1: The regulations may prescribe different modifications of the Act for different acts, practices or small business operators. See subsection 33(3A) of the Acts Interpretation Act 1901. Note 2: Regulations may prescribe an act, practice or small business operator by reference to one or more classes of acts, practices or small business operators. See subsection 46(2) of the Acts Interpretation Act 1901. 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 under this Act the small business operator, act or practice; and (b) consult the Commissioner about the desirability of regulating under this Act the matters described in paragraph (a). 6EA Small business operators choosing to be treated as organisations (1) This Act (except section 16D) applies in relation to a small business operator as if the operator were an organisation while a choice by the operator to be treated as an organisation is registered under this section. (2) A small business operator may make a choice in writing given to the Commissioner to be treated as an organisation. Note: A small business operator may revoke such a choice by writing given to the Commissioner. See subsection 33(3) of the Acts Interpretation Act 1901. (3) If the Commissioner is satisfied that a small business operator has made the choice to be treated as an organisation, the Commissioner must enter in a register of operators who have made such a choice: (a) the name or names under which the operator carries on business; and (b) the operator's ABN, if the operator has one under the A New Tax System (Australian Business Number) Act 1999. (4) If a small business operator revokes a choice to be treated as an organisation, the Commissioner must remove from the register the material relating to the operator. (5) The Commissioner may decide the form of the register and how it is to be kept. (6) The Commissioner must make the register available to the public in the way that the Commissioner determines. However, the Commissioner must not make available to the public in the register information other than that described in subsection (3). 6F State instrumentalities etc. treated as organisations Regulations treating a State instrumentality etc. as an organisation (1) This Act applies, with the prescribed modifications (if any), in relation to a prescribed State or Territory authority or a prescribed instrumentality of a State or Territory (except an instrumentality that is an organisation because of section 6C) as if the authority or instrumentality were an organisation. Note 1: The regulations may prescribe different modifications of the Act for different authorities or instrumentalities. See subsection 33(3A) of the Acts Interpretation Act 1901. Note 2: Regulations may prescribe an authority or instrumentality by reference to one or more classes of authority or instrumentality. See subsection 46(2) of the Acts Interpretation Act 1901. What are modifications? (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 State or Territory authority or instrumentality of a State or Territory for the purposes of subsection (1), the Minister must: (a) be satisfied that the relevant State or Territory has requested that the authority or instrumentality be prescribed for those purposes; and (b) consult the Commissioner about the desirability of regulating under this Act the collection, holding, use, correction, disclosure and transfer of personal information by the authority or instrumentality. 37 Application Under subsection 6A(2) or 6B(2) of the Privacy Act 1988 (as amended by this Schedule), a Commonwealth contract may prevent an act or practice from being a breach of a National Privacy Principle or an approved privacy code (as appropriate) regardless of whether the contract was made before or after the commencement of that subsection. 38 At the end of paragraph 7(1)(ed) Add "or". Note: The heading to section 7 is altered by inserting ", organisations" after "agencies". 39 After paragraph 7(1)(ed) Insert: (ee) an act done, or a practice engaged in, by an organisation, other than an exempt act or exempt practice (see sections 7B and 7C); 40 Subsection 7(2) After "Information Privacy Principles", insert ", the National Privacy Principles, an approved privacy code". 41 Subsection 7(4) Omit ", (m) and (n)", substitute "and (m)". 42 After section 7 Insert: 7A Acts of certain agencies treated as acts of organisation (1) This Act applies, with the prescribed modifications (if any), in relation to an act or practice described in subsection (2) or (3) as if: (a) the act or practice were an act done, or practice engaged in, by an organisation; and (b) the agency mentioned in that subsection were the organisation. (2) Subsection (1) applies to acts done, and practices engaged in, by a prescribed agency. Regulations for this purpose may prescribe an agency only if it is specified in Part I of Schedule 2 to the Freedom of Information Act 1982. (3) Subsection (1) also applies to acts and practices that: (a) are done or engaged in by an agency specified in Division 1 of Part II of Schedule 2 to the Freedom of Information Act 1982 in relation to documents in respect of its commercial activities or the commercial activities of another entity; and (b) relate to those commercial activities. (4) This section has effect despite subparagraph 7(1)(a)(i), paragraph 7(1)(c) and subsection 7(2). (5) In this section: modifications includes additions, omissions and substitutions. 7B Exempt acts and exempt practices of organisations Individuals in non‑business capacity (1) An act done, or practice engaged in, by an organisation that is an individual is exempt for the purposes of paragraph 7(1)(ee) if the act is done, or the practice is engaged in, other than in the course of a business carried on by the individual. Note: See also section 16E which provides that the National Privacy Principles do not apply for the purposes of, or in connection with, an individual's personal, family or household affairs. Organisation acting under Commonwealth contract (2) An act done, or practice engaged in, by an organisation is exempt for the purposes of paragraph 7(1)(ee) if: (a) the organisation is a contracted service provider for a Commonwealth contract (whether or not the organisation is a party to the contract); and (b) the organisation would be a small business operator if it were not a contracted service provider for a Commonwealth contract; and (c) the act is done, or the practice is engaged in, otherwise than for the purposes of meeting (directly or indirectly) an obligation under a Commonwealth contract for which the organisation is the contracted service provider. Note: This puts the organisation in the same position as a small business operator as far as its activities that are not for the purposes of a Commonwealth contract are concerned, so the organisation need not comply with the National Privacy Principles or a binding approved privacy code in relation to those activities. Employee records (3) An act done, or practice engaged in, by an organisation that is or was an employer of an individual, is exempt for the purposes of paragraph 7(1)(ee) if the act or practice is directly related to: (a) a current or former employment relationship between the employer and the individual; and (b) an employee record held by the organisation and relating to the individual. Journalism (4) An act done, or practice engaged in, by a media organisation is exempt for the purposes of paragraph 7(1)(ee) if the act is done, or the practice is engaged in: (a) by the organisation in the course of journalism; and (b) at a time when the organisation is publicly committed to observe standards that: (i) deal with privacy in the context of the activities of a media organisation (whether or not the standards also deal with other matters); and (ii) have been published in writing by the organisation or a person or body representing a class of media organisations. Organisation acting under State contract (5) An act done, or practice engaged in, by an organisation is exempt for the purposes of paragraph 7(1)(ee) if: (a) the organisation is a contracted service provider for a State contract (whether or not the organisation is a party to the contract); and (b) the act is done, or the practice is engaged in for the purposes of meeting (directly or indirectly) an obligation under the contract. 7C Political acts and practices are exempt Members of a Parliament etc. (1) An act done, or practice engaged in, by an organisation (the political representative) consisting of a member of a Parliament, or a councillor (however described) of a local government authority, is exempt for the purposes of paragraph 7(1)(ee) if the act is done, or the practice is engaged in, for any purpose in connection with: (a) an election under an electoral law; or (b) a referendum under a law of the Commonwealth or a law of a State or Territory; or (c) the participation by the political representative in another aspect of the political process. Contractors for political representatives etc. (2) An act done, or practice engaged in, by an organisation (the contractor) is exempt for the purposes of paragraph 7(1)(ee) if the act is done or the practice is engaged in: (a) for the purposes of meeting an obligation under a contract between the contractor and a registered political party or a political representative described in subsection (1); and (b) for any purpose in connection with one or more of the following: (i) an election under an electoral law; (ii) a referendum under a law of the Commonwealth or a law of a State or Territory; (iii) the participation in another aspect of the political process by the registered political party or political representative; (iv) facilitating acts or practices of the registered political party or political representative for a purpose mentioned in subparagraph (i), (ii) or (iii) of this paragraph. Subcontractors for organisations covered by subsection (1) etc. (3) An act done, or practice engaged in, by an organisation (the subcontractor) is exempt for the purposes of paragraph 7(1)(ee) if the act is done or the practice is engaged in: (a) for the purposes of meeting an obligation under a contract between the subcontractor and a contractor described in subsection (2); and (b) for a purpose described in paragraph (2)(b). Volunteers for registered political parties (4) An act done voluntarily, or practice engaged in voluntarily, by an organisation for or on behalf of a registered political party and with the authority of the party is exempt for the purposes of paragraph 7(1)(ee) if the act is done or the practice is engaged in for any purpose in connection with one or more of the following: (a) an election under an electoral law; (b) a referendum under a law of the Commonwealth or a law of a State or Territory; (c) the participation in another aspect of the political process by the registered political party; (d) facilitating acts or practices of the registered political party for a purpose mentioned in paragraph (a), (b) or (c). Effect of subsection (4) on other operation of Act (5) Subsection (4) does not otherwise affect the operation of the Act in relation to agents or principals. Meaning of electoral law and Parliament (6) In this section: electoral law means a law of the Commonwealth, or a law of a State or Territory, relating to elections to a Parliament or to a local government authority. Parliament means: (a) the Parliament of the Commonwealth; or (b) a State Parliament; or (c) the legislature of a Territory. Note: To avoid doubt, this section does not make exempt for the purposes of paragraph 7(1)(ee) an act or practice of the political representative, contractor, subcontractor or volunteer for a registered political party involving the use or disclosure (by way of sale or otherwise) of personal information in a way not covered by subsection (1), (2), (3) or (4) (as appropriate). The rest of this Act operates normally in relation to that act or practice. 43 Paragraph 8(1)(a) After "an agency,", insert "organisation,". Note: The heading to section 8 is altered by inserting ", organisation" after "agency". 44 Paragraph 8(1)(a) After "the agency,", insert "organisation,". 45 Paragraph 8(1)(b) After "an agency", insert "or organisation". 46 Paragraph 8(1)(b) After "the agency", insert "or organisation". 47 At the end of section 8 Add: (3) For the purposes of the application of this Act in relation to an organisation that is a partnership: (a) an act done or practice engaged in by a partner is taken to have been done or engaged in by the organisation; and (b) a communication (including a complaint, notice, request or disclosure of information) made to a partner is taken to have been made to the organisation. (4) For the purposes of the application of this Act in relation to an organisation that is an unincorporated association: (a) an act done or practice engaged in by a member of the committee of management of the association is taken to have been done or engaged in by the organisation; and (b) a communication (including a complaint, notice, request or disclosure of information) made to a member of the committee of management of the association is taken to have been made to the organisation. (5) For the purposes of the application of this Act in relation to an organisation that is a trust: (a) an act done or practice engaged in by a trustee is taken to have been done or engaged in by the organisation; and (b) a communication (including a complaint, notice or request or disclosure of information) made to a trustee is taken to have been made to the organisation. 48 At the end of Part II Add: 12B Severability: additional effect of Act in relation to organisations (1) Without limiting its effect apart from each of the following subsections of this section, this Act also has effect in relation to organisations as provided by that subsection. (2) This Act also has the effect it would have if its operation in relation to organisations were expressly confined to an operation to give effect to the International Covenant on Civil and Political Rights, and in particular Article 17 of the Covenant. Note: The text of the International Covenant on Civil and Political Rights is set out in Australian Treaty Series 1980 No. 23. In 2000, this was available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible on the Internet through that Department's world‑wide web site. (3) This Act also has the effect it would have if its operation in relation to organisations were expressly confined to acts or practices covered by subsection 5B(1) (which deals with acts and practices outside Australia and the external Territories by organisations). (4) This Act also has the effect it would have if its operation in relation to organisations were expressly confined to organisations that are corporations. (5) 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 in the course of, or in relation to, trade or commerce: (a) between Australia and places outside Australia; or (b) among the States; or (c) within a Territory, between a State and a Territory or between 2 Territories. (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 service within the meaning of paragraph 51(v) of the Constitution. (7) This Act also has the effect it would have if its operation in relation to organisations were expressly confined to acts or practices of organisations taking place in a Territory. (8) 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 in a place acquired by the Commonwealth for public purposes. 49 Before section 13 Insert: Division 1—Interferences with privacy 50 Section 13 Omit ", and only if,". 51 Paragraphs 13(b) and (d) After "an agency", insert ", organisation". 52 After section 13 Insert: 13A Interferences with privacy by organisations General rule (1) For the purposes of this Act, an act or practice of an organisation is an interference with the privacy of an individual if: (a) the act or practice breaches an approved privacy code that binds the organisation in relation to personal information that relates to the individual; or (b) both of the following apply: (i) the act or practice breaches a National Privacy Principle in relation to personal information that relates to the individual; (ii) the organisation is not bound by an approved privacy code in relation to the personal information; or (c) all of the following apply: (i) the act or practice relates to personal information that relates to the individual; (ii) the organisation is a contracted service provider for a Commonwealth contract (whether or not the organisation is a party to the contract); (iii) because of a provision of the contract that is inconsistent with an approved privacy code or a National Privacy Principle that applies to the organisation in relation to the personal information, the act or practice does not breach the code or Principle (see subsections 6A(2) and 6B(2)); (iv) the act is done, or the practice is engaged in, in a manner contrary to, or inconsistent with, that provision; or (d) the act or practice involves the organisation in a contravention of section 16F (which limits direct marketing using information collected under a Commonwealth contract) involving personal information that relates to the individual. Note: Sections 13B, 13C and 13D contain exceptions to this rule. Rule applies even if other rules also apply (2) It does not matter whether the organisation is also a credit reporting agency, a credit provider or a file number recipient. 13B Related bodies corporate Acts or practices that are not interferences with privacy (1) Despite paragraphs 13A(1)(a) and (b), each of the following acts or practices of an organisation that is a body corporate is not an interference with the privacy of an individual: (a) the collection of personal information (other than sensitive information) about the individual by the body corporate from a related body corporate; (b) the disclosure of personal information (other than sensitive information) about the individual by the body corporate to a related body corporate. Note: Subsection (1) lets related bodies corporate share personal information. However, in using or holding the information, they must comply with the National Privacy Principles or a binding approved privacy code. For example, there is an interference with privacy if: (a) a body corporate uses personal information it has collected from a related body corporate; and (b) the use breaches National Privacy Principle 2 (noting that the collecting body's primary purpose of collection will be taken to be the same as that of the related body) or a corresponding provision in a binding approved privacy code. (1A) However, paragraph (1)(a) does not apply to the collection by a body corporate of personal information (other than sensitive information) from: (a) a related body corporate that is not an organisation; or (b) a related body corporate whose disclosure of the information to the body corporate is an exempt act or exempt practice for the purposes of paragraph 7(1)(ee); or (c) a related body corporate whose disclosure of the information to the body corporate is not an interference with privacy because of section 13D. Note: The effect of subsection (1A) is that a body corporate's failure to comply with the National Privacy Principles, or a binding approved privacy code, in collecting personal information about an individual from a related body corporate covered by that subsection is an interference with the privacy of the individual. Relationship with paragraphs 13A(1)(c) and (d) (2) Subsection (1) does not prevent an act or practice of an organisation from being an interference with the privacy of an individual under paragraph 13A(1)(c) or (d). 13C Change in partnership because of change in partners Acts or practices that are not interferences with privacy (1) If: (a) an organisation (the new partnership) that is a partnership forms at the same time as, or immediately after, the dissolution of another partnership (the old partnership); and (b) at least one person who was a partner in the old partnership is a partner in the new partnership; and (c) the new partnership carries on a business that is the same as, or similar to, a business carried on by the old partnership; and (d) the new partnership holds, immediately after its formation, personal information about an individual that the old partnership held immediately before its dissolution; neither the disclosure (if any) by the old partnership, nor the collection (if any) by the new partnership, of the information that was necessary for the new partnership to hold the information immediately after its formation constitutes an interference with the privacy of the individual. Note: Subsection (1) lets personal information be passed on from an old to a new partnership. However, in using or holding the information, they must comply with the National Privacy Principles or a binding approved privacy code. For example, the new partnership's use of personal information collected from the old partnership may constitute an interference with privacy if it breaches National Privacy Principle 2 or a corresponding provision in a binding approved privacy code. Effect despite section 13A (2) Subsection (1) has effect despite section 13A. 13D Overseas act required by foreign law Acts or practices that are not interferences with privacy (1) An act or practice of an organisation done or engaged in outside Australia and an external Territory is not an interference with the privacy of an individual if the act or practice is required by an applicable law of a foreign country. Effect despite section 13A (2) Subsection (1) has effect despite section 13A. 13E Effect on section 13 of sections 13B, 13C and 13D Sections 13B, 13C and 13D do not prevent an act or practice of an organisation from being an interference with the privacy of an individual under section 13. 13F Act or practice not covered by section 13 or section 13A is not an interference with privacy An act or practice that is not covered by section 13 or section 13A is not an interference with the privacy of an individual. Division 2—Information Privacy Principles 53 Application An act or practice of an organisation may be an interference with the privacy of an individual under paragraph 13A(1)(c) of the Privacy Act 1988 whether the contract mentioned in that paragraph was made before or after the commencement of section 13A of that Act. 54 After section 16 Insert: Division 3—Approved privacy codes and the National Privacy Principles 16A Organisations to comply with approved privacy codes or National Privacy Principles (1) An organisation must not do an act, or engage in a practice, that breaches an approved privacy code that binds the organisation. (2) To the extent (if any) that an organisation is not bound by an approved privacy code, the organisation must not do an act, or engage in a practice, that breaches a National Privacy Principle. (3) This section, approved privacy codes and the National Privacy Principles have effect in addition to sections 18 and 18A and Part IIIA, and do not derogate from them. (4) To avoid doubt, an act done, or practice engaged in, by an organisation without breaching an approved privacy code or the National Privacy Principles is not authorised by law (or by this Act) for the purposes of Part IIIA merely because it does not breach the code or the Principles. Note: If an act or practice is otherwise authorised by law, exceptions to the prohibitions in the National Privacy Principles and Part IIIA may mean that the act or practice does not breach the Principles or certain provisions of that Part. 16B Personal information in records (1) This Act (except Divisions 4 and 5 of Part III and Part IIIA) applies to the collection of personal information by an organisation only if the information is collected for inclusion in a record or a generally available publication. (2) This Act (except Divisions 4 and 5 of Part III and Part IIIA) applies to personal information that has been collected by an organisation only if the information is held by the organisation in a record. 16C Application of National Privacy Principles (1) National Privacy Principles 1, 3 (so far as it relates to collection of personal information) and 10 apply only in relation to the collection of personal information after the commencement of this section. (1A) National Privacy Principle 2 applies only in relation to personal information collected after the commencement of this section. (2) National Privacy Principles 3 (so far as it relates to personal information used or disclosed), 4, 5, 7 and 9 apply in relation to personal information held by an organisation regardless of whether the organisation holds the personal information as a result of collection occurring before or after the commencement of this section. (3) National Privacy Principle 6 applies in relation to personal information collected after the commencement of this section. That Principle also applies to personal information collected by an organisation before that commencement and used or disclosed by the organisation after that commencement, except to the extent that compliance by the organisation with the Principle in relation to the information would: (a) place an unreasonable administrative burden on the organisation; or (b) cause the organisation unreasonable expense. (4) National Privacy Principle 8 applies only to transactions entered into after the commencement of this section. 16D Delayed application of National Privacy Principles to small business (1) This section deals with the application of the National Privacy Principles to an organisation that carries on one or more small businesses throughout the delayed application period for the organisation. This section has effect despite section 16C. (2) National Privacy Principles 1, 3 (so far as it relates to collection of personal information) and 10 apply only in relation to the collection of personal information by the organisation after the delayed application period. (3) National Privacy Principles 3 (so far as it relates to personal information used or disclosed), 4, 5, 7 and 9 apply in relation to the organisation only after the delayed application period. Those Principles then apply in relation to personal information held by the organisation as a result of collection occurring before, during or after that period. (4) National Privacy Principles 2 and 6 apply only in relation to personal information collected by the organisation after the delayed application period. (5) National Privacy Principle 8 applies only to transactions entered into with the organisation after the delayed application period. (6) In this section: delayed application period, for an organisation, means the period: (a) starting at the later of the following times: (i) the start of the day when this section commences; (ii) when the organisation became an organisation; and (b) ending at the earlier of the following times: (i) immediately before the first anniversary of the day when this section commences; (ii) when the organisation carries on either a business that is not a small business or a business that involves the provision of health services. 16E Personal, family or household affairs Nothing in the National Privacy Principles applies to: (a) the collection, holding, use, disclosure or transfer 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. 16F Information under Commonwealth contract not to be used for direct marketing (1) This section limits the use and disclosure of personal information collected: (a) for the purpose of meeting (directly or indirectly) an obligation under a Commonwealth contract; and (b) by an organisation that is a contracted service provider for the contract. Note: An organisation may be a contracted service provider for a Commonwealth contract whether or not the organisation is a party to the contract. (2) An organisation that is a contracted service provider for the contract must not use or disclose the personal information for direct marketing, unless the use or disclosure is necessary to meet (directly or indirectly) an obligation under the contract. (3) Subsection (2) has effect despite: (a) an approved privacy code (if any) binding the organisation in relation to the personal information; and (b) the National Privacy Principles. Division 4—Tax file number information 55 After section 18 Insert: Division 5—Credit information 56 After paragraph 18A(3)(a) Insert: (aa) the National Privacy Principles and the provisions of Part IIIAA; and 57 Application The amendment of section 18A of the Privacy Act 1988 by this Schedule applies to the preparation of the Code of Conduct for issue after the commencement of the amendment. 58 After Part III Insert: Part IIIAA—Privacy codes 18BA Application for approval of privacy code An organisation may apply in writing to the Commissioner for approval of a privacy code. 18BB Commissioner may approve privacy code (1) Before deciding whether to approve a privacy code, the Commissioner may consult any person the Commissioner considers appropriate. (2) The Commissioner may approve a privacy code if, and only if, the Commissioner is satisfied: (a) that the code incorporates all the National Privacy Principles or sets out obligations that, overall, are at least the equivalent of all the obligations set out in those Principles; and (b) that the code specifies the organisations bound by the code or a way of determining the organisations that are, or will be, bound by the code; and (c) that only organisations that consent to be bound by the code are, or will be, bound by the code; and (d) that the code sets out a procedure by which an organisation may cease to be bound by the code and when the cessation takes effect; and (e) of the matters mentioned in subsection (3), if the code sets out procedures for making and dealing with complaints in relation to acts or practices of an organisation bound by the code that may be an interference with the privacy of an individual; and (f) that members of the public have been given an adequate opportunity to comment on a draft of the code. (3) If the code sets out procedures for making and dealing with complaints, the Commissioner must be satisfied that: (a) the procedures meet: (i) the prescribed standards; and (ii) the Commissioner's guidelines (if any) in relation to making and dealing with complaints; and (b) the code provides for the appointment of an independent adjudicator to whom complaints may be made; and (c) the code provides that, in performing his or her functions, and exercising his or her powers, under the code, an adjudicator for the code must have due regard to the matters that paragraph 29(a) requires the Commissioner to have due regard to; and (d) the determinations, findings, declarations, orders and directions that the adjudicator may make under the code after investigating a complaint are the same as those that the Commissioner may make under section 52 after investigating a complaint under this Act; and (e) the code obliges an organisation bound by the code not to repeat or continue conduct of the organisation declared by the adjudicator (after investigating a complaint) to constitute an interference with the privacy of the complainant; and (f) the code obliges an organisation bound by the code to perform an act or course of conduct that the adjudicator has declared (after investigating a complaint) that the organisation should perform to redress loss or damage suffered by the complainant; and (g) the code requires organisations bound by the code to co‑operate with the adjudicator when the adjudicator is performing functions or exercising powers under the code; and (h) the code requires a report (in a form satisfactory to the Commissioner) to be prepared as soon as practicable after 30 June each year on the operation of the code during the financial year that ended on that 30 June; and (i) the code requires that a copy of each report is to be given to the Commissioner within a timetable that is satisfactory to the Commissioner; and (j) the code requires that a copy of each report is to be made available to anyone who asks for it; and (k) the code requires the report prepared for each year to include the number and nature of complaints made to an adjudicator under the code during the relevant financial year; and (ka) the code requires the report prepared for each year to include, for each complaint finally dealt with by an adjudicator under the code during the relevant financial year, a summary identifying: (i) the nature of the complaint; and (ii) the provisions of the code applied in dealing with the complaint; and (iii) the outcome of the dealing; whether or not the adjudicator made a determination, finding, declaration, order or direction in dealing with the complaint; and (l) the code identifies an adjudicator for the code or another person as the person responsible for the requirements in this subsection relating to the annual report for the code. (4) In deciding whether to approve a privacy code, the Commissioner may consider the matters specified in guidelines issued by the Commissioner (if any). (5) An approval must be in writing. (6) This section does not prevent the Commissioner approving a privacy code if: (a) the code also sets out: (i) the period during which it will operate; or (ii) the circumstances in which it will expire; and (b) the Commissioner considers that the period or circumstances are appropriate. (7) This section does not prevent the Commissioner approving a privacy code if the code is expressed to apply to: (a) all personal information or a specified type of personal information; or (b) a specified activity or class of activities of an organisation; or (c) a specified industry sector and/or profession; or (d) a specified class of industry sectors and/or professions. 18BC When approval takes effect (1) The approval of a privacy code takes effect on the day specified in the approval. (2) The day specified must not be before the day on which the approval is given. 18BD Varying an approved privacy code (1) An organisation may apply in writing to the Commissioner for approval of a variation of an approved privacy code by giving the Commissioner a copy of the code that incorporates the variations. (2) The Commissioner may approve in writing the variation. (3) In deciding whether to approve the variation, the Commissioner must consider all of the matters that the Commissioner would consider in deciding whether to approve under section 18BB a privacy code identical to the approved privacy code with the variation. (4) However, if the Commissioner thinks that a variation is minor, he or she need not be satisfied that members of the public have been given an adequate opportunity to comment on a draft variation of the code (as would otherwise be required by paragraph 18BB(2)(f)). Instead, the Commissioner may consult any person he or she thinks appropriate about the draft variation. (5) The approval of the variation takes effect on the day specified in the approva