Whistle-blowers are protected by the Corporations Act from civil, criminal or administrative liability, contractual or other remedy, contractual termination or victimisation. For practitioners, the publications are useful in the formation of an early and high-level understanding on each of the relevant topics and jurisdictions GLG covers. Otherwise, there is limited express rights by which an individual may directly restrict how their information is processed. Yes; consent or notice is generally required. However, a representative complaint may be lodged on behalf of a class of people where all the class members were affected by an interference with privacy. For instance, in the State of New South Wales, the operator of a bus or taxi service must ensure that signs are conspicuously placed within and on the outside of a bus or taxi advising persons that they may be under video surveillance. A more recent example can be found in the proceedings brought by the OAIC against Facebook Inc in March 2020 (Facebook Inc v Australian Information Commissioner [2022] FCAFC 9) in relation to the use and disclosure of personal information collected through the use of This is Your Digital Life application. 3.1 Do the data protection laws apply to businesses established in other jurisdictions? The Schrems II decision calls into question the use of Standard Contractual Clauses as a transfer mechanism and urges companies to make assessments on a case-by-case basis to ensure the data is adequately protection from acquisition by public authorities. 7.2 If such registration/notification is needed, must it be specific (e.g., listing all processing activities, categories of data, etc.) The main authorities include the following: 2.1 Please provide the key definitions used in the relevant legislation: Terminology used in the Privacy Act is personal information, which is defined to refer to information or an opinion about an identified individual, or an individual who is reasonably identifiable: Processing is not used in the Privacy Act. At the time of writing, the public listing of accredited data recipients is available here: (Hyperlink). The DNCR Act prohibits unsolicited telemarketing calls and fax messages to numbers on the national Do Not Call Register, unless consent is obtained from the person or organisation being contacted. Sensitive information is defined in the Privacy Act as: Under s. 26WE(2) of the Privacy Act, there is an eligible data breach if: See also other definitions in s. 6 of the Privacy Act. Generally, there is no obligation under the Privacy Act to register with or notify data protection authorities such as the OAIC. CPS 231 sets out the minimum matters that must be addressed by the outsourcing agreement, including: 10.1 Please describe any legislative restrictions on the sending of electronic direct marketing (e.g., for marketing by email or SMS, is there a requirement to obtain prior opt-in consent of the recipient?). For government agencies, the Government Agencies APP Code provides that an agency may designate an officer as a privacy officer by reference to a position or role, including by reference to a position or role in another agency. APP 1 requires an APP entity to have a clearly expressed privacy policy which must contain information on how an individual may (i) access personal information about the individual that is held by the entity and seek the correction of such information, and (ii) complain about a breach of the APP and how the entity will deal with such a complaint. The Privacy Act does not stipulate an age after which an individual can make their own privacy decisions.
ICLG - Data Protection Laws and Regulations - Practice Areas > An entity discloses personal information when it makes it accessible or visible to others outside the entity and releases the subsequent handling of the personal information from its effective control. In particular, the ACMA held that Telstra breached the legislations by not correctly designating approximately 50,000 individuals telephone numbers as being unlisted (or silent) on the Integrated Public Number Database (IPND) and not correctly updating personal details on the IPND for approximately 65,000 individuals. 16.3 Is there a legal requirement to report data breaches to affected data subjects? Refer to data minimisation above. The Spam Act prohibits the sending of unsolicited and non-consensual electronic messages. Once an individual has withdrawn consent, an APP entity can no longer rely on that past consent for any future use or disclosure of the individuals personal information. APP 13 permits an individual to require an entity to correct their held personal information. Yes; the Privacy Act requires the entity, if practicable to do so, to take reasonable steps to notify the contents of the statement described above to each individual to whom the information relates or who are at risk from the eligible date breach. Under APP 7, an organisation is prohibited from using or disclosing personal information for the purpose of direct marketing. Moreover, APP 11 denotes that an entity must take active steps to ensure that personal information no longer required (for the notified purpose) is deleted or de-identified. In theory, the APPs do not apply differently to different types of cookies. As processing activities do not generally require registration, they would not be banned unless they are in breach of applicable legislative requirements. This requires that the organisation who purchases the marketing list from a third party ensures that the individuals on the list have consented to marketing or, where such consent is impractical to obtain, each communication provides the recipient with a simple means to opt out. As part of this obligation, the business is required to ensure that other entities to which it discloses personal information also comply with the relevant legal requirements. Australia Chapter the overseas recipient is exempt from complying, or is authorised to not comply, with part, or all of the privacy or data protection law in the jurisdiction; or. The passing of the SLACIP Act would constitute the second tranche of the Security of Critical Infrastructure laws (SOCI Laws). In consequence, the Court ordered the AFS licence holder to engage cybersecurity experts (as agreed between itself and ASIC) to identify what, if any, further documentation and controls in respect of cybersecurity and cyber resilience is necessary for the AFS licence holder to adequately manage any risks. The Privacy Act does not contain an explicit right which protects an individuals personal information against automated decision-making and profiling. 10.7 What are the maximum penalties for sending marketing communications in breach of applicable restrictions? measuring and documenting the agencys performance against the privacy management plan at least annually. Furthermore, in mid-2019, the OAIC accepted an undertaking for a company that was connected to Federal Parliament to use the information collected in relation to Parliament and subsequently contact those persons without their consent. 13.2 Is anonymous reporting prohibited, strongly discouraged, or generally permitted? 12.3 Do transfers of personal data to other jurisdictions require registration/notification or prior approval from the relevant data protection authority(ies)? An agency is set out as a defined list which includes, for instance, the following key agencies: Processor is not used in the Privacy Act. The phrase Data Subject is not used in the Privacy Act. An example of this occurred in 2016, where the OAIC had obtained an enforceable undertaking from a Canadian-based media company due to discomfort expressed with the security of personal information collected, as well as compliance reporting, monitoring and enforcement. Increasingly since, directors will need to ensure their own company has appropriate privacy and cybersecurity risk management and measures in place. The maximum penalty for data security breaches under the Privacy Act is currently AU$2.22 million for a body corporate. For banking, insurance and superannuation industries, APRA-regulated entities are required by CPS 234 to evaluate the design of a data processors information security controls that protects the entities information assets. Dealing with unsolicited personal information. 8.5 Please describe any specific qualifications for the Data Protection Officer required by law. Right protecting against solely automated decision-making and profiling. 
However, there are exceptions to this under APP 8.2: For the banking, insurance and superannuation industries, CPS 231 requires APRA-regulated entities to notify the APRA prior to entering into any off-shore outsourcing arrangement of a material business activity (including data processing activity). S. 9 of the DNCR Act also expressly states that it extends to acts, omissions and matters outside Australia. The relevant concept is phrased as APP entity, which means an agency or organisation. In connection with government agencies, the OAIC published a Privacy Officer Toolkit in which it recommends a privacy officer to have: 8.6 What are the responsibilities of the Data Protection Officer as required by law or best practice? 7.10 Can the registration/notification be completed online? MinterEllison, Helen Cheung The following exceptions apply to personal information (not sensitive information): Under the Spam Act, express or inferred consent is required for the sending of an electronic message (see section 16). The primary judge granted the OAIC leave to serve Facebook Inc and Facebook Ireland overseas. At a high level, the RMP will need to consider: Moreover, entities will need to submit an annual report within 90 days of the end of the financial year, in the specified form, which includes a statement: as to whether the RMP was up to date at the end of the financial year; and on any hazard that had a significant impact, including details of the hazard, the effectiveness of the RMP, and any responsive variation of the RMP. 1.1 What is the principal data protection legislation? ICLG.com > 
10.5 Is/are the relevant data protection authority(ies) active in enforcement of breaches of marketing restrictions? 8.1 Is the appointment of a Data Protection Officer mandatory or optional?
Yes; the Privacy Act requires entities to give a notification if they have reasonable grounds to believe that an eligible data breach has happened, or it is directed to do so by the Commissioner. There are no express legislative restrictions and penalties specifically on the use of cookies. a process for reviewing the programme and keeping the programme up to date. As a general rule, an individual under the age of 18 has the capacity to consent when they have sufficient understanding and maturity to understand what is being proposed. A big hot topic in this space is the proposed amendments to the Privacy Act. The OAIC can take, and has taken, action on foreign organisations. With respect to government agencies, failure to appoint a privacy officer as required by the Government Agencies APP Code would be a breach of that Code, which is a contravention of APP 1.2 and also an interference with the privacy of an individual under clause 26A of the Privacy Act. or its officer or employee. It further stipulates timeframes in which an entity must respond to an individuals request to access their data. In order to be protected under the Corporations Act, the discloser must be an eligible whistle-blower, which includes an individual who is or has been an officer, employee, supplier or employee of a supplier (whether paid or unpaid) or associate of a regulated entity or a relative or dependant of any of these individuals. MinterEllison, Zoe Zhang There are also notice requirements in relation to employee surveillance. The AFS licence holder was also ordered to pay ASICs costs of the proceedings, being AU$750,000. In an official response to a Freedom of Information request, the OAIC answered the question of whether Australian businesses will be impacted by the Schrems II decision. Describe how employers typically obtain consent or provide notice. The process and time frame for relatively new CDR accreditation scheme have been developing and emerging gradually. For instance, in March 2021, an e-marketing company was fined AU$310,000 for breaching the Spam Act and sending direct marketing emails without a functional unsubscribe facility. It would be good practice for such obligations to be agreed in writing between the business and the data processor as a contractual arrangement. Such secondary purpose should: APP 3 stipulates that personal information must not be collected unless it is reasonably necessary for: Furthermore, APP 11 requires personal information to be destroyed/de-identified where an entity no longer requires the information for any purpose for which the information may be used or disclosed under the APPs. New South Wales, Victoria and the Australian Capital Territory have specific legislation regulating workplace surveillance. For an APRA-regulated institution, if in APRAs view, an offshoring agreement (including an offshoring agreement for the processing of data) involves risks that the APRA regulated institution is not managing appropriately, APRA may require the APRA-regulated institution to make other arrangements for the outsourced activity as soon as practicable. The court may also make an order directing a person who has infringed the DNCR Act and/or the Spam Act to compensate a victim who has suffered loss or damage as a result of the relevant contraventions. 10.3 Please describe any legislative restrictions on the sending of marketing via other means (e.g., for marketing by telephone, a national opt-out register must be checked in advance; for marketing by post, there are no consent or opt-out requirements, etc.). If so, in what circumstances would a business established in another jurisdiction be subject to those laws? 17.3 Describe the data protection authoritys approach to exercising those powers, with examples of recent cases. an unincorporated association that has its central management and control in Australia or an external Territory.
7.9 Is any prior approval required from the data protection regulator? Based on such notice, the individual may choose whether or not to have their personal information collected. The stockpiling of unused data for no applicable purpose is not just poor data hygiene but a breach of the Australian Privacy Principles. 11.3 To date, has/have the relevant data protection authority(ies) taken any enforcement action in relation to cookies? So far, there has been no official Australian data protection authority guidance issued in this regard. Yes, registration for the CDR regime can be completed online. At work is defined as at a workplace of the employer (or a related corporation of the employer), regardless of whether the employee is actually performing work at the time, or at any other place while performing work for the employer (or a related corporation of the employer). If so, describe what details must be reported, to whom, and within what timeframe. The OAIC has the powers discussed under question 16.1 above in respect of processing activities regulated by the Privacy Act. There is no general requirement by law on the responsibilities of the Data Protection Officer. 9.1 If a business appoints a processor to process personal data on its behalf, must the business enter into any form of agreement with that processor? camera surveillance, which is surveillance by means of a camera that monitors or records visual images; computer surveillance, which is surveillance by means of software or other equipment that monitors or records the information input or output, or other use, of a computer; and. Between 2017 and 2019, the ACCC conducted the Digital Platforms Inquiry, which pulled the curtain on the effect that search engines, content aggregation platforms and social media platforms have on competition and user privacy. If no legal requirement exists, describe under what circumstances the relevant data protection authority(ies) expect(s) voluntary breach reporting. No; the use of CCTV does not require separate registration, notification or prior approval from data protection authorities. 15.4 Are employers entitled to process information on an employees COVID-19 vaccination status? APP 10 stipulates that personal information held, used, and disclosed by an entity should be complete, accurate and up to date. If so, how is this enforced? For government agencies, the Government Agencies APP Code requires an agency to keep the OAIC notified in writing of the contact details for the agencys privacy officer, or if an agency has more than one privacy officer, for one of its privacy officers. The judgment found that through its installation and/or management of cookies on devices of Australian users, Facebook was deemed to be carrying on business in Australia and therefore subject to Australian privacy law. The OAIC stated that the impact of the Schrems II decision on international data transfers is likely to be significant. Yes, there is sector-specific legislation impacting data protection, including those set out below. 5.1 What are the key rights that individuals have in relation to the processing of their personal data? If so, what are the relevant factors? Penalties under the DNCR Act and the Spam Act are civil rather than criminal penalties. The relevant terminology is APP entity, in relation to which please refer to the definition for Controller above. However, this is not applicable to information held by a government agency that is required or authorised by law not to disclose the information, or where an organisation reasonably believes that the disclosure of such information would be a serious threat to the health or safety of others, or would cause detriment to ones privacy. The Privacy Act 1988 (Cth) (Privacy Act), which includes the Australian Privacy Principles (APPs), is the principal data protection legislation. 17.4 Does the data protection authority ever exercise its powers against businesses established in other jurisdictions? However, please refer to question 19.2 for a prospective look at the proposed increase in penalties. APP 11.3 requires an entity to take reasonable steps to destroy or de-identify personal information if it no longer needs the personal information for any purpose for which the information may be used or disclosed under the APPs. Right to complain to the relevant data protection authority(ies).
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