one or more of an organisations functions or activities. 18.2 What guidance has/have the data protection authority(ies) issued? anything kept in a library, art gallery or museum for the purposes of reference, study or exhibition; Commonwealth records in the open access period for the purposes of the. 7.3 On what basis are registrations/notifications made (e.g., per legal entity, per processing purpose, per data category, per system or database)? Generally, an employer must first seek an employees consent in order to collect information about an employees vaccination status and the collection must be reasonably necessary for one or more of the employers functions or activities, unless there is an applicable exception such as the collection being required or authorised by law or a court order. Although Telstra had self-reported its breaches, the ACMA found Telstra had engaged in conduct that breached its obligations as a provider of telecommunications services, which in turn could threaten its customers privacy as well as public safety. 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. The entity must give a copy of this statement to the Commissioner as soon as practicable. An eligible whistle-blower is protected under the Corporations Act if disclosure is made to the Australian Securities and Investments Commission (ASIC), the Australian Prudential Regulation Authority, a prescribed Commonwealth authority or eligible recipients including an officer, senior manager, auditor, actuary or any other person authorised by the regulated entity to receive such disclosures, or to a legal practitioner for the purpose of obtaining legal advice or representation relating to such protection. If so, what are the relevant factors? 7.10 Can the registration/notification be completed online? or directly related to, one or more of an agencys functions or activities; or. If the appointment of a Data Protection Officer is only mandatory in some circumstances, please identify those circumstances. are sent by an individual or organisation who is physically present in Australia, or whose central management is in Australia, at the time of sending; have been accessed by a computer, server or device located in Australia; are connected to an account-holder that is present in Australia when the message is accessed; or. 15.4 Are employers entitled to process information on an employees COVID-19 vaccination status? In respect of government agencies, the Government Agencies APP Code describes privacy officers as the primary point of contact for advice on privacy matters in a Government agency and requires Government agencies to ensure that the following privacy officer functions are carried out: 8.7 Must the appointment of a Data Protection Officer be registered/notified to the relevant data protection authority(ies)? The SLACIP Act introduces a new obligation for responsible entities to create and maintain a critical infrastructure risk management programme. If an individual has consented to an entitys collection of the individuals personal information for a primary purpose, then the information should not be used for another purpose (secondary purpose) save for a few exceptions, including where the individual would reasonably expect the entity to use or disclose the information for the secondary purpose. 17.3 Describe the data protection authoritys approach to exercising those powers, with examples of recent cases. If the entity determines that it could not have done so, then it should destroy or de-identify the information in accordance with APP 4. 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. MinterEllison, Zoe Zhang 10.2 Are these restrictions only applicable to business-to-consumer marketing, or do they also apply in a business-to-business context? The Corporations Act 2001 (Cth) (Corporations Act) provides protections for whistle-blowers who report misconduct or an improper state of affairs or circumstances in relation to a regulated entity(ies) (including companies, banks, insurers, etc.) 12.2 Please describe the mechanisms businesses typically utilise to transfer personal data abroad in compliance with applicable transfer restrictions (e.g., consent of the data subject, performance of a contract with the data subject, approved contractual clauses, compliance with legal obligations, etc.). However, it must comply with APP 7.3. the personal information has been directly collected from an individual in a manner reasonably expected to be used for direct marketing (APP 7.2); or, the personal information has been collected from a third party, or from an individual who would not reasonably expect their personal information to be used for direct marketing, and either the individual has consented to the direct marketing or it is impracticable to obtain that consent (APP 7.3); and. 12.3 Do transfers of personal data to other jurisdictions require registration/notification or prior approval from the relevant data protection authority(ies)? This decision was appealed by Facebook and on 7 February 2022, the Full Federal Court of Australia delivered its judgment. If it is prohibited or discouraged, how do businesses typically address this issue? As processing activities do not generally require registration, they would not be banned unless they are in breach of applicable legislative requirements. MinterEllison, Tony Issa Refer to data minimisation above. 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. Yes, other general legislation that impacts data protection include the following: There is also the following legislation at the state and territory level: 1.3 Is there any sector-specific legislation that impacts data protection? If so, are there any best practice recommendations on using such lists? that an individual 15 or over has the capacity to consent (unless something suggests otherwise); and. The Privacy Act applies to Australian Government agencies and organisations with an annual turnover of more than AU$3 million, as well as some other organisations (APP entities). 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. ASIC made use of historical forensic cybersecurity reports which raised significant gaps in the companys cybersecurity systems before the incident occurred, which may indicate a failure to remedy a known risk (and thus poor, if any, risk management). 9.2 If it is necessary to enter into an agreement, what are the formalities of that agreement (e.g., in writing, signed, etc.) 15.3 To what extent do works councils/trade unions/employee representatives need to be notified or consulted? Under section 180 of the Corporations Act 2001 (Cth) (Corporations Act), directors are required to exercise their powers with a degree of care and diligence expected of a person in their position, including considering all foreseeable risks of harm to a corporation. If no legal requirement exists, describe under what circumstances the relevant data protection authority(ies) expect(s) voluntary breach reporting. 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. 8.4 Can a business appoint a single Data Protection Officer to cover multiple entities? See also further details in the last bullet point under question 5.1 above. 10.4 Do the restrictions noted above apply to marketing sent from other jurisdictions? The OAIC has the powers discussed under question 16.1 above in respect of processing activities regulated by the Privacy Act. ASIC alleged that the AFS licence holder was subject to a brute force attack whereby a malicious user successfully gained remote access to the AFS licensees server, which contained sensitive client 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. an in-depth understanding of the Privacy Act and the Government Agencies APP Code, and the ability to translate these requirements into practice in the agency; and. 16.2 Is there a legal requirement to report data breaches to the relevant data protection authority(ies)? 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? or can it be general (e.g., providing a broad description of the relevant processing activities)? Yes; consent or notice is generally required. MinterEllison, Helen Cheung 11.2 Do the applicable restrictions (if any) distinguish between different types of cookies? in relation to tracking surveillance, a notice must be clearly visible on the vehicle indicating that the vehicle is the subject of tracking surveillance. In this instance, ASIC instigated proceedings against an Australian Financial Service (AFS) licence holder on the basis that it failed to appropriately manage its cyber security risks. Further, APPs 7.6 and 7.7 outline the requirements related to individuals requesting not to receive direct marketing communications, including situations where the use or disclosure of their personal information is for the purpose of facilitating direct marketing by other organisations. As discussed further in section 16 below, certain obligations arise when specific data breaches occur. 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. Otherwise, there is limited express rights by which an individual may directly restrict how their information is processed. handling of internal and external privacy enquiries, privacy complaints, and requests for access to and correction of personal information; maintaining a record of the agencys personal information holdings; assisting with the preparation of privacy impact assessments; maintaining the agencys register of privacy impact assessments; and. that an individual aged under 15 is does not have capacity to consent. APP 7.1 encompasses not only the regulation of personal information for direct marketing but also its disclosure for this purpose. These agencies, as well as APP entities, must not use the personal information for a purpose other than that for which it was collected, unless certain exemptions apply, such as the individual having consented to the use of the information. in the case of sensitive information, be directly related to the primary purpose. An organisation is defined in the Privacy Act as: that is not a small business operator, a registered political party, an agency, or an authority or prescribed instrumentality of a State or Territory. S. 9 of the DNCR Act also expressly states that it extends to acts, omissions and matters outside Australia. All entities (to which the Privacy Act applies) are subject to the same obligations. In respect to CDR accreditation under the CDR scheme is in respect of the receipt and holding of CDR data. 7.8 How frequently must registrations/notifications be renewed (if applicable)? it is reasonably believed that the recipient is subject to a law, or binding scheme, that bears overall substantial similarity to the APPs and the individual can take action to enforce such protections; the entity has obtained the individuals consent to the foreign disclosure; the foreign disclosure is required or authorised by Australian law; a permitted general situation (such as to lessen or prevent serious health and safety risks, or to take appropriate action in relation to suspected serious misconduct) applies; such disclosure is required by a Government agency under an agreement to which Australia is a party; or. This includes messages that: The DNCR Act covers telephone calls and fax messages sent to an Australian number. There is no qualification generally required by law in Australia. 1.1 What is the principal data protection legislation? 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. A marketing list may be purchased from a third party. The Privacy Act does not contain an explicit right which protects an individuals personal information against automated decision-making and profiling. 14.2 Are there limits on the purposes for which CCTV data may be used? So far, there has been no official Australian data protection authority guidance issued in this regard. Please describe which types of transfers require approval or notification, what those steps involve, and how long they typically take. Yes, the Privacy Act applies to businesses established in other jurisdictions provided that the APP entity or small business operator has an Australian Link. 1.4 What authority(ies) are responsible for data protection? 12.1 Please describe any restrictions on the transfer of personal data to other jurisdictions. measuring and documenting the agencys performance against the privacy management plan at least annually. The extent of an entitys obligations with respect to its processing activities falls under the accreditation requirements set out in the CDR scheme in Part IVD, Division 3 of the Competition and Consumer Act 2010 (Cth). 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. 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. With respect to the CDR regime, if a person holds out a false accreditation for receiving and holding CDR data, the sanctions are: 7.7 What is the fee per registration/notification (if applicable)? Please see details of the sanctions under question 16.1 below. 15.2 Is consent or notice required? 7.2 If such registration/notification is needed, must it be specific (e.g., listing all processing activities, categories of data, etc.) If so, which entities are responsible for ensuring that data are kept secure (e.g., controllers, processors, etc.)? APPs 7.2 and 7.3 stipulate that APP entities must provide individuals a simple method to request the APP entity to no longer send, and the individual to no longer receive, marketing communications. It imposes an obligation on APP entities to implement practices, procedures and systems to ensure the organisation is APP compliant. 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.). Under APP 8.1, businesses must take such steps as are reasonable in the circumstances to ensure that the foreign recipient complies with the APPs (other than APP 1) in relation to the information. Separately, the OAIC requires any person lodging a privacy complaint with them to provide his or her name and contact details as the OAIC cannot investigate an anonymous complaint. CPS 231 also sets out requirements for these entities outsourcing of material business activities to be documented in a binding agreement. Data Protection > If so, describe what details must be reported, to whom, and within what timeframe. 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. 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. Under APP 7.6(e), individuals may also request to be advised of the source of their personal information used or disclosed in relation to the direct marketing. The OAIC stated that this part of the decision may have implications for Australian businesses if EU companies or EU data protection authorities were to consider that data being transferred to Australia could be subject to an order by Australian public authorities. APP 3.5 restricts APP entities to collect personal information only by lawful and fair means. Alternatively, if it is not practical or reasonable for an APP entity to establish the capacity of an individual under the age of 18, the entity may presume: The APP Guidelines mentions that in some circumstances, it may be appropriate for a parent or guardian to consent on behalf of a young person, for example, if the child is young or lacks the maturity or understanding to do so themselves.
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