As a small business owner, it is vital that you and your business comply with Australian privacy laws. The main thing you need to be aware of is the Australian Privacy Principles, which are 13 points that make up the centre of our privacy framework. 

Understanding the Australian Privacy Principles can be a bit tricky so we’ve put together a simple guide for you and your business. 

Read on to learn more. 

Does Your Business Come Under The Privacy Act 1988 (Cth)?

First you must determine if your business comes under the Privacy Act 1988 (Cth) (Privacy Act).

Not all, but some small businesses come under the Privacy Act.

The Office of the Australian Information Commissioner (OAIC) defines a small business that must comply with the Privacy Act as any business that has an annual turnover of $3 million or more

For the purposes of the Privacy Act, an annual turnover includes: 

  • All income from all sources.

An annual turnover does not include: 

  • Assets held 
  • Capital gains or
  • Capital sales

Further, the OAIC outlines that regardless of turnover, the Privacy Act covers any business that is: 

The OAIC has a privacy checklist for small businesses. It contains 15 questions to determine whether your business comes under the Privacy Act. It can be found here

If the Privacy Act does in fact cover your business, it is important to understand your obligations under the Australian Privacy Principles

Complying With The Australian Privacy Principles 

If your business is covered under the Privacy Act, there are 13 Australian Privacy Principles (APP) that your business will have to comply with. 

It is important to understand each APP to ensure that your business is compliant. 

Let’s consider each APP singularly to best understand how your business’ obligations. 

APP 1: Open and Transparent Management of Personal Information  

Your business must manage all personal information in an open and transparent way. 

Personal information can be defined as information or an opinion about an identified or reasonably identifiable individual. 

Information is still personal whether or not it is true. Equally, it remains personal information whether it is recorded in a material form or not. 

Ensuring open and transparent management of personal information can be achieved by having clear procedures when encountering personal information. 

If your business must comply with Australian Privacy Principles, having a clear and up to date Privacy Policy is a requirement under the Privacy Act. 

Ensuring that your Privacy Policy is available at all times (for example, on your website) is a great way to ensure the open and transparent management of personal information. 

APP 2: Anonymity and Pseudonymity

Your business must give individuals the option of not identifying themselves or using a pseudonym. 

A pseudonym can be understood to be a name, term or description that is different to an individual’s real name. 

There are however exceptions to this APP. 

For example, you do not have to give individuals the option of not identifying themselves or using a pseudonym if: 

  1. Your business is otherwise required by Australian Law to have the individual identify themselves or
  2. It is impractical for your business to deal with an anonymous individual or an individual using a pseudonym. 

APP 3: Collection of Solicited Personal Information 

This APP outlines when it is appropriate for your business to collect personal information

Solicited personal information is where your business requests personal information. 

For example, if, in the course of business, you require an individual’s response containing their personal information, this would be considered ‘solicited personal information’. 

Where collected by lawful and fair means, your business may collect solicited personal information, so long as it is reasonably necessary for your business’ activities. 

Caution should however be taken when collecting sensitive information. Sensitive information includes:

  • Health information 
  • Racial or ethnic origin 
  • Sexual orientation 
  • Criminal record 
  • Political opinion
  • Religious beliefs

When collecting sensitive information, it is important to ensure that the individual consents to providing that information. 

APP 4: Dealing With Unsolicited Personal Information 

Unsolicited personal information is where you receive or collect an individual’s personal information without having taken any action to receive that information

For example, you could receive a forwarded email chain containing somebody other than your client’s personal information. 

When you receive unsolicited personal information, you have two options:

  1. Determine if the information could have been collected as ‘solicited personal information’ under APP 3, or if the information is in the Commonwealth Record 
  2. Destroy or de-identify the personal information as soon as practically possible, if it is lawful and reasonable to do so
  • In the above example, this could be done by removing the email chain from your email servers

APP 5: Notification of the Collection of Personal Information 

When your business collects an individual’s personal information, you must take reasonable steps to let that individual know about a few things. 

These include: 

  • Your business’ details, including contact details 
  • Why you have collected their personal information 
  • Information about your business’ Privacy Policy 
  • Whether the individual’s personal information is likely to be disclosed to overseas recipients

APP 6: Use or Disclosure of Personal Information 

When your business collects personal information, it is expected that you only use that personal information in ways that the individuals would expect.

When personal information is collected, it is usually collected for a ‘primary purpose’ (or a particular purpose) — for example, collecting a client’s financial details for a particular transaction. 

Your business can only use or disclose personal information for another purpose, also known as a ‘secondary purpose’, if an exception applies

Exceptions include: 

  • The individual consented to secondary use or disclosure 
  • The individual would reasonably expect secondary use or disclosure 
  • Secondary use or disclosure is required or authorised under law

APP 7: Direct Marketing 

Direct marketing is where your business uses an individual’s personal information to directly promote goods and services. 

Generally, your business cannot use personal information for the purpose of direct marketing. 

However, an exception does apply:

  • If the individual, when providing their personal information, would expect their personal information to be used for direct marketing purposes.

Even if the above exception applies to your business, it is important to be aware of the following:

  • You must allow an individual to ‘opt out’ or ‘unsubscribe’ from your business’ direct marketing communication and 
  • You must comply with that individual’s request to opt out or unsubscribe. 

It is also important to be aware of the Spam Act 2003 (Cth) and the necessity for your business to avoid sending spam. For more information on how to actively avoid sending spam, click here

APP 8: Cross-Border Disclosure of Personal Information 

If your business engages with overseas businesses or overseas contractors, it is vital that you take all reasonable steps to ensure that an overseas recipient of personal information does not breach the APPs.  

For example, if you engage an overseas business to run your marketing campaigns, it is your responsibility to ensure that they comply with APP 7. 

In the instance that an overseas recipient of personal information breaches the APPs, your business will be held accountable for the breach. 

APP 9: Adoption, Use or Disclosure of Government Related Identifiers 

APP 9 restricts the adoption use and disclosure of government related identifiers, unless exceptions apply. 

Examples of a government related identifier include a: 

  • Passport number
  • Medicare number 
  • Drivers license number
  • Centrelink reference number.

Exceptions include: 

  • If utilising a government related identifier for an individual is necessary to identify the person for your business’ activities or functions or
  • If adopting a government related identifier of an individual is required or authorised under Australian Law 

APP 10: Quality of Personal Information 

Your business must take all necessary steps to ensure that the personal information it collects is accurate, up-to-date and complete. 

Ensuring that all personal information your business collects and holds is accurate, up-to-date and complete will secure customers’ trust and confidence in your business. 

Here’s some reasonable steps your business can take to ensure the personal information you’re holding is accurate, up-to-date and complete: 

  • Remind individuals to update their personal information each time they engage with your business 
  • Contact individuals to ensure their personal information is up-to-date
  • Consistently monitor and update existing records to reflect accurate, up-to-date and complete personal information

APP 11: Security of Personal Information 

It is your business’ responsibility to take responsible steps to ensure the protection of personal information that it holds. This means making sure that the personal information your business collects is not misused, interfered with or lost.  

Your business must actively destroy personal information when it is no longer required (except if you’re required by law to retain personal information). 

Taking reasonable steps to ensure that the personal information your business holds is secure include: 

  • Updating both your physical and technological security
  • Monitoring for data breaches 
  • Ensuring up-to-date practices, procedures and systems 
  • Implementing and ensuring effective training, culture and governance 
  • Maintaining high security standards in all business activities 

APP 12: Access to Personal Information 

If your business holds personal information about an individual and that individual requests that information, you are generally required to provide them with access to their personal information

When granting access to an individual, you must verify the identity of the individual requesting access. You must ensure that access is being granted to the individual concerned in the information or by an authorised person, such as a legal guardian.

There are, however, a few situations in which you can refuse an individual’s access to personal information. This includes cases where: 

  • Giving access would unreasonably impact another individual’s privacy 
  • Giving access would be unlawful 
  • You reasonably believe that providing access would pose a serious threat to the health and safety of public or any individual

APP 13: Correction of Personal Information 

Your business is required to correct personal information to ensure that it is accurate, up-to-date, complete, relevant and not misleading

This may occur when: 

  • Your business actively takes initiative to correct personal information that it holds 
  • An individual requests that a correction be made to their personal information

It is important that you take all reasonable steps to ensure that the personal information held by your business is accurate, up-to-date, complete, relevant and not misleading. 

Need More Help? 

The APPs can seem like a lot to get your head around. But it’s vital that your business complies with them. 

The above guide is a great start to understanding your business’ obligations under the APPs. However, if you are concerned about your business’ relationship with the APPs, it may be a good idea to speak with a lawyer

If you need anymore help, reach out to our team for a free, no-obligations chat at team@sprintlaw.com.au or 1800 730 617.

About Sprintlaw

Sprintlaw is a new type of law firm that operates completely online and on a fixed-fee basis. We’re on a mission to make quality legal services faster, simpler and more affordable for small business owners and entrepreneurs.

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