Scrutiny of Acts and Regulations Committee

Report on an Interim Privacy Code of Conduct
for Members of the Victorian Parliament, May 2001

Appendix 2 – Information Privacy Principles

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Schedule 1 – The Information Privacy Principles

In these Principles –

"unique identifier" means an identifier (usually a number) assigned by an organisation to an individual uniquely to identify that individual for the purposes of the operations of the organisation but does not include an identifier that consists only of the individual's name;

"sensitive information" means 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;

1. Principle 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) to whom (or the types of individuals or 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 IPP 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.

2. Principle 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 use or disclosure is necessary for research, or the compilation or analysis of statistics, in the public interest, other than for publication in a form that identifies any particular individual –

(i) it is impracticable for the organisation to seek the individual's consent before the use or disclosure; and

(ii) in the case of disclosure – the organisation reasonably believes that the recipient of the information will not disclose the information; or

(d) 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, safety or welfare; or

(ii) a serious threat to public health, public safety, or public welfare; or

(e) 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

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

(g) the organisation reasonably believes that the use or disclosure is reasonably necessary for one or more of the following by or on behalf of a law enforcement agency –

(i) the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of a law imposing a penalty or sanction;

(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;

(v) the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal; or

(h) the Australian Security Intelligence Organization (ASIO) or the Australian Secret Intelligence Service (ASIS), in connection with its functions, has requested the organisation to disclose the personal information and –

(i) the disclosure is made to an officer or employee of ASIO or ASIS (as the case requires) authorised in writing by the Director-General of ASIO or ASIS (as the case requires) to receive the disclosure; and

(ii) an officer or employee of ASIO or ASIS (as the case requires) authorised in writing by the Director-General of ASIO or ASIS (as the case requires) for the purposes of this paragraph has certified that the disclosure would be connected with the performance by ASIO or ASIS (as the case requires) of its functions.

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

3. Principle 3 – Data Quality

3.1 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.

4. Principle 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.

5. Principle 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.

6. Principle 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) providing access would pose a serious and imminent threat to the life or health of any individual; or

(b) providing access would have an unreasonable impact on the privacy of other individuals; or

(c) the request for access is frivolous or vexatious; or

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

(e) 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

(f) providing access would be unlawful; or

(g) denying access is required or authorised by or under law; or

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

(i) providing access would be likely to prejudice –

(i) the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of a law imposing a penalty or sanction; or

(ii) the enforcement of laws relating to the confiscation of the proceeds of crime; or

(iii) the protection of public revenue; or

(iv) the prevention, detection, investigation or remedying of seriously improper 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 a law enforcement agency; or

(j) ASIO, ASIS or a law enforcement agency 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.

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 (j) (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, the organisation –

(a) must advise an individual who requests access to personal information that the organisation will provide access on the payment of the prescribed fee; and

(b) may refuse access to the personal information until the fee is paid.

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.

6.8 If an individual requests access to, or the correction of, personal information held by an organisation, the organisation must –

(a) provide access, or reasons for the denial of access; or

(b) correct the personal information, or provide reasons for the refusal to correct the personal information; or

(c) provide reasons for the delay in responding to the request for access to or for the correction of personal information –

as soon as practicable, but no later than 45 days after receiving the request.

7. Principle 7 – Unique Identifiers

7.1 An organisation must not assign unique identifiers to individuals unless the assignment of unique identifiers is necessary to enable the organisation to carry out any of its functions efficiently.

7.2 An organisation must not adopt as its own unique identifier of an individual a unique identifier of the individual that has been assigned by another organisation unless –

(a) it is necessary to enable the organisation to carry out any of its functions efficiently; or

(b) it has obtained the consent of the individual to the use of the unique identifier; or

(c) it is an outsourcing organisation adopting the unique identifier created by a contracted service provider in the performance of its obligations to the organisation under a State contract.

7.3 An organisation must not use or disclose a unique identifier assigned to an individual by another organisation unless –

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

(b) one or more of paragraphs 2.1(d) to 2.1(g) applies to the use or disclosure; or

(c) it has obtained the consent of the individual to the use or disclosure.

7.4 An organisation must not require an individual to provide a unique identifier in order to obtain a service unless the provision of the unique identifier is required or authorised by law or the provision is in connection with the purpose (or a directly related purpose) for which the unique identifier was assigned.

8. Principle 8 – Anonymity

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

9. Principle 9 – Transborder Data Flows

9.1 An organisation may transfer personal information about an individual to someone (other than the organisation or the individual) who is outside Victoria 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 Information 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 that consent, the individual would be likely to give it; or