the Australian Privacy Principles

This page considers the Australian national Information Privacy Principles (IPP) and National Privacy Principles (NPP).

It covers -

• introduction
• 1988 Principles
• 2000 Principles

The following page highlights proposals for rationalisation of those principles as a single overarching national set of Unified Privacy Principles (UPP).

     introduction

The national privacy regime encompasses eleven Information Privacy Principles (IPP) in the Commonwealth Privacy Act 1988 and ten National Privacy Principles (NPP) in the Commonwealth Privacy Amendment (Private Sector) Act 2000, which are discussed in the following pages of this profile

As the name suggests, they are broad statements that can serve to articulate community expectations and aspirations but in practice are dependent on application and on interpretation.

Application is affected by -

• provisions in statute law (eg exclusion of some bodies)
• operational guidelines, manuals and recognised practice in the public and private sectors
• the capacity of watchdogs to enforce the principles
• the enthusiasm with which breaches of the principles are publicised by official watchdogs and advocacy bodies as a surrogate of enforcement in court.

    the 1988 Principles

The national Privacy Act 1988 features eleven Information Privacy Principles -

• IPP 1 manner and purpose of collection
• IPP 2 solicitation of personal information from individual
• IPP 3 Solicitation generally
• IPP 4 Storage and security
• IPP 5 Information relating to records
• IPP 6 Access to records
• IPP 7 Alteration of records
• IPP 8 Checking accuracy before use
• IPP 9 Use only for relevant purposes
• IPP 10 Limits on use of personal information
• IPP 11 Limits on disclosure

#     IPP 1

Manner and purpose of collection of personal information

1. Personal information shall not be collected by a collector for inclusion in a record or in a generally available publication unless:

a) the information is collected for a purpose that is a lawful purpose directly related to a function or activity of the collector; and

b) the collection of the information is necessary for or directly related to that purpose.

2. Personal information shall not be collected by a collector by unlawful or unfair means

#     IPP 2

Solicitation of personal information from individual concerned

Where:

a) a collector collects personal information for inclusion in a record or in a generally available publication; and

b) the information is solicited by the collector from the individual concerned;

the collector shall take such steps (if any) as are, in the circumstances, reasonable to ensure that, before the information is collected or, if that is not practicable, as soon as practicable after the information is collected, the individual concerned is generally aware of:

c) the purpose for which the information is being collected;

d) if the collection of the information is authorised or required by or under law - the fact that the collection of the information is so authorised or required; and

e) any person to whom, or any body or agency to which, it is the collector's usual practice to disclose personal information of the kind so collected, and (if known by the collector) any person to whom, or any body or agency to which, it is the usual practice of that first mentioned person, body or agency to pass on that information.

#     IPP 3

Solicitation of personal information generally

Where:

a) a collector collects personal information for inclusion in a record or in a generally available publication; and

b) the information is solicited by the collector:

the collector shall take such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is collected:

c) the information collected is relevant to that purpose and is up to date and complete; and

d) the collection of the information does not intrude to an unreasonable extent upon the personal affairs of the individual concerned.

#     IPP 4

Storage and security of personal information

A record-keeper who has possession or control of a record that contains personal information shall ensure:

a) that the record is protected, by such security safeguards as it is reasonable in the circumstances to take, against loss, against unauthorised access, use, modification or disclosure, and against other misuse; and

b) that if it is necessary for the record to be given to a person in connection with the provision of a service to the record-keeper, everything reasonably within the power of the record-keeper is done to prevent unauthorised use or disclosure of information contained in the record.

#     IPP 5

Information relating to records kept by record-keeper

1. A record-keeper who has possession or control of records that contain personal information shall, subject to clause 2 of this Principle, take such steps as are, in the circumstances, reasonable to enable any person to ascertain:

a) whether the record-keeper has possession or control of any records that contain personal information; and

b) if the record-keeper has possession or control of a record that contains such information:
(i) the nature of that information;
(ii) the main purposes for which that information is used; and
(iii) the steps that the person should take if the person wishes to obtain access to the record.

2. A record-keeper is not required under clause 1 of this Principle to give a person information if the record-keeper is required or authorised to refuse to give that information to the person under the applicable provisions of any law of the Commonwealth that provides for access by persons to documents.

3. A record-keeper shall maintain a record setting out:

a) the nature of the records of personal information kept by or on behalf of the record-keeper;

b) the purpose for which each type of record is kept;

c) the classes of individuals about whom records are kept;

d) the period for which each type of record is kept;

e) the persons who are entitled to have access to personal information contained in the records and the conditions under which they are entitled to have that access; and

f) the steps that should be taken by persons wishing to obtain access to that information.

4. A record-keeper shall:

a) make the record maintained under clause 3 of this Principle available for inspection by members of the public; and

b) give the Commissioner, in the month of June in each year, a copy of the record so maintained.

#     IPP 6

Access to records containing personal information

Where a record-keeper has possession or control of a record that contains personal information, the individual concerned shall be entitled to have access to that record, except to the extent that the record-keeper is required or authorised to refuse to provide the individual with access to that record under the applicable provisions of any law of the Commonwealth that provides for access by persons to documents.

#     IPP 7

Alteration of records containing personal information

1. A record-keeper who has possession or control of a record that contains personal information shall take such steps (if any), by way of making appropriate corrections, deletions and additions as are, in the circumstances, reasonable to ensure that the record:

a) is accurate; and

b) is, having regard to the purpose for which the information was collected or is to be used and to any purpose that is directly related to that purpose, relevant, up to date, complete and not misleading.

2. The obligation imposed on a record-keeper by clause 1 is subject to any applicable limitation in a law of the Commonwealth that provides a right to require the correction or amendment of documents.

3. Where:

a) the record-keeper of a record containing personal information is not willing to amend that record, by making a correction, deletion or addition, in accordance with a request by the individual concerned; and

b) no decision or recommendation to the effect that the record should be amended wholly or partly in accordance with that request has been made under the applicable provisions of a law of the Commonwealth;

the record-keeper shall, if so requested by the individual concerned, take such steps (if any) as are reasonable in the circumstances to attach to the record any statement provided by that individual of the correction, deletion or addition sought.

#     IPP 8

Record-keeper to check accuracy etc of personal information before use

A record-keeper who has possession or control of a record that contains personal information shall not use that information without taking such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is proposed to be used, the information is accurate, up to date and complete.

#     IPP 9

Personal information to be used only for relevant purposes

A record-keeper who has possession or control of a record that contains personal information shall not use the information except for a purpose to which the information is relevant.

#     IPP 10

Limits on use of personal information

1. A record-keeper who has possession or control of a record that contains personal information that was obtained for a particular purpose shall not use the information for any other purpose unless:

a) the individual concerned has consented to use of the information for that other purpose;

b) the record-keeper believes on reasonable grounds that use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person;

c) use of the information for that other purpose is required or authorised by or under law;

d) use of the information for that other purpose is reasonably necessary for enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue; or

e) the purpose for which the information is used is directly related to the purpose for which the information was obtained.

2. Where personal information is used for enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue, the record-keeper shall include in the record containing that information a note of that use.

#     IPP 11

Limits on disclosure of personal information

1. A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:

a) the individual concerned is reasonably likely to have been aware, or made aware under Principle 2, that information of that kind is usually passed to that person, body or agency;

b) the individual concerned has consented to the disclosure;

c) the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person;

d) the disclosure is required or authorised by or under law; or

e) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.

2. Where personal information is disclosed for the purposes of enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the purpose of the protection of the public revenue, the record-keeper shall include in the record containing that information a note of the disclosure.

3. A person, body or agency to whom personal information is disclosed under clause 1 of this Principle shall not use or disclose the information for a purpose other than the purpose for which the information was given to the person, body or agency.

     the 2000 Principles

The national Privacy Amendment (Private Sector) Act 2000 features ten National Privacy Principles (the NPP) that are congruent with the 1988 IPP covering government data collection/handling -

• 1 - Collection
• 2 - Use and disclosure
• 3 - Data quality
• 4 - Data security
• 5 - Openness
• 6 - Access and correction
• 7 - Identifiers
• 8 - Anonymity
• 9 - Transborder data flows
• 10 - Sensitive information

#     NPP 1

Collection

1.1 An organisation must not collect personal information unless the information is necessary for one or more of its functions or activities.

1.2 An organisation must collect personal information only by lawful and fair means and not in an unreasonably intrusive way.

1.3 At or before the time (or, if that is not practicable, as soon as practicable after) an organisation collects personal information about an individual from the individual, the organisation must take reasonable steps to ensure that the individual is aware of:

a) the identity of the organisation and how to contact it; and

b) the fact that he or she is able to gain access to the information; and

c) the purposes for which the information is collected; and

d) the organisations (or the types of organisations) to which the organisation usually discloses information of that kind; and

e) any law that requires the particular information to be collected; and

f) the main consequences (if any) for the individual if all or part of the information is not provided.

1.4 If it is reasonable and practicable to do so, an organisation must collect personal information about an individual only from that individual.

1.5 If an organisation collects personal information about an individual from someone else, it must take reasonable steps to ensure that the individual is or has been made aware of the matters listed in subclause 1.3 except to the extent that making the individual aware of the matters would pose a serious threat to the life or health of any individual.

#     NPP 2

Use and disclosure

2.1 An organisation must not use or disclose personal information about an individual for a purpose (the secondary purpose) other than the primary purpose of collection unless:

a) both of the following apply:
(i) the secondary purpose is related to the primary purpose of collection and, if the personal information is sensitive information, directly related to the primary purpose of collection;
(ii) the individual would reasonably expect the organisation to use or disclose the information for the secondary purpose; or

b) the individual has consented to the use or disclosure; or

c) if the information is not sensitive information and the use of the information is for the secondary purpose of direct marketing:
(i) it is impracticable for the organisation to seek the individual's consent before that particular use; and
(ii) the organisation will not charge the individual for giving effect to a request by the individual to the organisation not to receive direct marketing communications; and
(iii) the individual has not made a request to the organisation not to receive direct marketing communications; and
(iv) in each direct marketing communication with the individual, the organisation draws to the individual's attention, or prominently displays a notice, that he or she may express a wish not to receive any further direct marketing communications; and
(v) each written direct marketing communication by the organisation with the individual (up to and including the communication that involves the use) sets out the organisation's business address and telephone number and, if the communication with the individual is made by fax, telex or other electronic means, a number or address at which the organisation can be directly contacted electronically; or

d) if the information is health information and the use or disclosure is necessary for research, or the compilation or analysis of statistics, relevant to public health or public safety:
(i) it is impracticable for the organisation to seek the individual's consent before the use or disclosure; and
(ii) the use or disclosure is conducted in accordance with guidelines approved by the Commissioner under section 95A for the purposes of this subparagraph; and
(iii) in the case of disclosure—the organisation reasonably believes that the recipient of the health information will not disclose the health information, or personal information derived from the health information; or

e) the organisation reasonably believes that the use or disclosure is necessary to lessen or prevent:
(i) a serious and imminent threat to an individual's life, health or safety; or
(ii) a serious threat to public health or public safety; or

f) the organisation has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the personal information as a necessary part of its investigation of the matter or in reporting its concerns to relevant persons or authorities; or

g) the use or disclosure is required or authorised by or under law; or

h) the organisation reasonably believes that the use or disclosure is reasonably necessary for one or more of the following by or on behalf of an enforcement body:
(i) the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction or breaches of a prescribed law;
(ii) the enforcement of laws relating to the confiscation of the proceeds of crime;
(iii) the protection of the public revenue;
(iv) the prevention, detection, investigation or remedying of seriously improper conduct or prescribed conduct;
(v) the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal.

It is not intended to deter organisations from lawfully co-operating with agencies performing law enforcement functions in the performance of their functions. Subclause 2.1 does not override any existing legal obligations not to disclose personal information. Nothing in subclause 2.1 requires an organisation to disclose personal information; an organisation is always entitled not to disclose personal information in the absence of a legal obligation to disclose it. An organisation is also subject to the requirements of National Privacy Principle 9 if it transfers personal information to a person in a foreign country.

2.2 If an organisation uses or discloses personal information under paragraph 2.1(h), it must make a written note of the use or disclosure.

2.3 Subclause 2.1 operates in relation to personal information that an organisation that is a body corporate has collected from a related body corporate as if the organisations primary purpose of collection of the information were the primary purpose for which the related body corporate collected the information.

2.4 Despite subclause 2.1, an organisation that provides a health service to an individual may disclose health information about the individual to a person who is responsible for the individual if:

a) the individual:
(i) is physically or legally incapable of giving consent to the disclosure; or
(ii) physically cannot communicate consent to the disclosure; and

b) a natural person (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

c) 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

d) the disclosure is limited to the extent reasonable and necessary for a purpose mentioned in paragraph (b).

2.5 For the purposes of subclause 2.4, a person is responsible for an individual if the person is:

a) a parent of the individual; or

b) a child or sibling of the individual and at least 18 years old; or

c) a spouse or de facto spouse of the individual; or

d) a relative of the individual, at least 18 years old and a member of the individual's household; or

e) a guardian of the individual; or

f) 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.

2.6 In subclause 2.5:

- child of an individual includes an adopted child, a step-child and a foster-child, of the individual
- parent of an individual includes a step-parent, adoptive parent and a foster-parent, of the individual
- relative of an individual means a grandparent, grandchild, uncle, aunt, nephew or niece, of the individual
- sibling of an individual includes a half-brother, half-sister, adoptive brother, adoptive sister, step-brother, step-sister, foster-brother and foster-sister, of the individual.

#     NPP 3

Data quality

An organisation must take reasonable steps to make sure that the personal information it collects, uses or discloses is accurate, complete and up-to-date.

#     NPP 4

Data security

4.1 An organisation must take reasonable steps to protect the personal information it holds from misuse and loss and from unauthorised access, modification or disclosure.

4.2 An organisation must take reasonable steps to destroy or permanently de-identify personal information if it is no longer needed for any purpose for which the information may be used or disclosed under National Privacy Principle 2.

#     NPP 5

Openness

5.1 An organisation must set out in a document clearly expressed policies on its management of personal information. The organisation must make the document available to anyone who asks for it.

5.2 On request by a person, an organisation must take reasonable steps to let the person know, generally, what sort of personal information it holds, for what purposes, and how it collects, holds, uses and discloses that information.

#     NPP 6

Access and correction

6.1 If an organisation holds personal information about an individual, it must provide the individual with access to the information on request by the individual, except to the extent that:

a) in the case of personal information other than health information—providing access would pose a serious and imminent threat to the life or health of any individual; or

b) in the case of health information—providing access would pose a serious threat to the life or health of any individual; or

c) providing access would have an unreasonable impact upon the privacy of other individuals; or

d) the request for access is frivolous or vexatious; or

e) the information relates to existing or anticipated legal proceedings between the organisation and the individual, and the information would not be accessible by the process of discovery in those proceedings; or

f) providing access would reveal the intentions of the organisation in relation to negotiations with the individual in such a way as to prejudice those negotiations; or

g) providing access would be unlawful; or

h) denying access is required or authorised by or under law; or

i) providing access would be likely to prejudice an investigation of possible unlawful activity; or

j) providing access would be likely to prejudice:
(i) the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction or breaches of a prescribed law; or
(ii) the enforcement of laws relating to the confiscation of the proceeds of crime; or
(iii) the protection of the public revenue; or
(iv) the prevention, detection, investigation or remedying of seriously improper conduct or prescribed conduct; or
(v) the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of its orders; by or on behalf of an enforcement body; or

k) an enforcement body performing a lawful security function asks the organisation not to provide access to the information on the basis that providing access would be likely to cause damage to the security of Australia.

6.2 However, where providing access would reveal evaluative information generated within the organisation in connection with a commercially sensitive decision-making process, the organisation may give the individual an explanation for the commercially sensitive decision rather than direct access to the information.

An organisation breaches subclause 6.1 if it relies on subclause 6.2 to give an individual an explanation for a commercially sensitive decision in circumstances where subclause 6.2 does not apply.

6.3 If the organisation is not required to provide the individual with access to the information because of one or more of paragraphs 6.1(a) to (k) (inclusive), the organisation must, if reasonable, consider whether the use of mutually agreed intermediaries would allow sufficient access to meet the needs of both parties.

6.4 If an organisation charges for providing access to personal information, those charges:

a) must not be excessive; and

b) must not apply to lodging a request for access.

6.5 If an organisation holds personal information about an individual and the individual is able to establish that the information is not accurate, complete and up-to-date, the organisation must take reasonable steps to correct the information so that it is accurate, complete and up-to-date.

6.6 If the individual and the organisation disagree about whether the information is accurate, complete and up-to-date, and the individual asks the organisation to associate with the information a statement claiming that the information is not accurate, complete or up-to-date, the organisation must take reasonable steps to do so.

6.7 An organisation must provide reasons for denial of access or a refusal to correct personal information.

#     NPP 7

Identifiers

7.1 An organisation must not adopt as its own identifier of an individual an identifier of the individual that has been assigned by:

a) an agency; or

b) an agent of an agency acting in its capacity as agent; or

c) a contracted service provider for a Commonwealth contract acting in its capacity as contracted service provider for that contract.

7.1A However, subclause 7.1 does not apply to the adoption by a prescribed organisation of a prescribed identifier in prescribed circumstances.

Other prerequisites must be satisfied before those matters are prescribed.

7.2 An organisation must not use or disclose an identifier assigned to an individual by an agency, or by an agent or contracted service provider mentioned in subclause 7.1, unless:

a) the use or disclosure is necessary for the organisation to fulfil its obligations to the agency; or

b) one or more of paragraphs 2.1(e) to 2.1(h) (inclusive) apply to the use or disclosure; or

c) the use or disclosure is by a prescribed organisation of a prescribed identifier in prescribed circumstances.

Other prerequisites must be satisfied before the matters mentioned in paragraph (c) are prescribed.

7.3 In this clause:identifier includes a number assigned by an organisation to an individual to identify uniquely the individual for the purposes of the organisation's operations. However, an individual's name or ABN (as defined in the A New Tax System (Australian Business Number) Act 1999) is not an identifier.

#     NPP 8

Anonymity

Wherever it is lawful and practicable, individuals must have the option of not identifying themselves when entering transactions with an organisation.

#     NPP 9

Transborder data flows

An organisation in Australia or an external Territory may transfer personal information about an individual to someone (other than the organisation or the individual) who is in a foreign country only if:

a) the organisation reasonably believes that the recipient of the information is subject to a law, binding scheme or contract which effectively upholds principles for fair handling of the information that are substantially similar to the National Privacy Principles; or

b) the individual consents to the transfer; or

c) the transfer is necessary for the performance of a contract between the individual and the organisation, or for the implementation of pre-contractual measures taken in response to the individual's request; or

d) the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the individual between the organisation and a third party; or

e) all of the following apply:
(i) the transfer is for the benefit of the individual;
(ii) it is impracticable to obtain the consent of the individual to that transfer;
(iii) if it were practicable to obtain such consent, the individual would be likely to give it; or

f) the organisation has taken reasonable steps to ensure that the information which it has transferred will not be held, used or disclosed by the recipient of the information inconsistently with the National Privacy Principles.

#     NPP 10

Sensitive information

10.1 An organisation must not collect sensitive information about an individual unless:

a) the individual has consented; or

b) the collection is required by law; or

c) the collection is necessary to prevent or lessen a serious and imminent threat to the life or health of any individual, where the individual whom the information concerns:
(i) is physically or legally incapable of giving consent to the collection; or
(ii) physically cannot communicate consent to the collection; or

d) if the information is collected in the course of the activities of a non-profit organisation the following conditions are satisfied:
(i) the information relates solely to the members of the organisation or to individuals who have regular contact with it in connection with its activities;
(ii) at or before the time of collecting the information, the organisation undertakes to the individual whom the information concerns that the organisation will not disclose the information without the individual's consent; or

e) the collection is necessary for the establishment, exercise or defence of a legal or equitable claim.

10.2 Despite subclause 10.1, an organisation may collect health information about an individual if:

a) the information is necessary to provide a health service to the individual; and

b) the information is collected:
(i) as required by law (other than this Act); or
(ii) in accordance with rules established by competent health or medical bodies that deal with obligations of professional confidentiality which bind the organisation.

10.3 Despite subclause 10.1, an organisation may collect 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 that does not identify the individual or from which the individual's identity cannot reasonably be ascertained; and

c) it is impracticable for the organisation to seek the individual's consent to the collection; and

d) the information is collected:
(i) as required by law (other than this Act); or
(ii) in accordance with rules established by competent health or medical bodies that deal with obligations of professional confidentiality which bind the organisation; or
(iii) in accordance with guidelines approved by the Commissioner under section 95A for the purposes of this subparagraph.

10.4 If an organisation collects health information about an individual in accordance with subclause 10.3, the organisation must take reasonable steps to permanently de-identify the information before the organisation discloses it.

10.5 In this clause:non-profit organisation means a non-profit organisation that has only racial, ethnic, political, religious, philosophical, professional, trade, or trade union aims.

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