Australia: Privacy and APPs and sporting organisations

What does the Privacy Act regulate?

The Privacy Act 1988 (Cth) regulates standards, rights and obligations relating to the collection, use, storage and maintenance of personal information and sensitive information about an individual by government and non-government agencies.

Personal information is information or an opinion, true or not, in any form, about a person who is identifiable or reasonably identifiable. Examples include name, contact details, birth date, employment, bank account details, comments, opinions, photographs, video footage, news articles, sports reports, information collected through cookies on a website, and personal information collected using ID scanners or other security measures.

Sensitive information is a type of personal information. Examples include health information, racial or ethnic origin, political opinions or political associations, religious or political beliefs or affiliations, criminal records.

Who Does It Apply To?

Australian government agencies, all businesses and not-for-profit agencies with a turnover of more than $3million must comply with the Act with some exceptions.

Some small business operators with a turnover of less than $3 million must comply with the Act, eg:

  • Health service providers: medical and health professionals, pharmacies, therapists
  • Gyms and weight loss clinics;
  • Child care centres;
  • Private schools and private tertiary institutions; and
  • Businesses or organisations that opt-in.

Entities which must comply are referred to in the Act as APP entities.

Who Doesn't It Apply To?

The Act does not apply to:

  • State or Territory government agencies, or their hospitals (with some exceptions);
  • Individuals acting in a personal capacity;
  • Public schools and most universities;
  • In some circumstances, employee records;
  • Small businesses, unless they must comply for reasons above; and
  • Media organisations and political parties or representatives.

Recent Changes to the Privacy Act

On 12 March 2014 significant amendments were made to the Act, including creation of 13 Australian Privacy Principles ("APPs"). Entities bound by the Act must comply with the APPs, having a privacy policy and procedures in place for maintaining compliance, as well as consequences and significant penalties for breach of obligations.

Key changes relevant to Not-For-Profits Sporting Associations?

  • The APPs apply to Australian government agencies and other APP entities rather than the previous Information Privacy Principles for government and National Privacy Principles for business.
  • Some APPs significantly differ to the previous principles, particularly APPs 7 and 8.
  • The Office of the Australian Information Commissioner ("OAIC") has increased powers, including to accept enforceable undertakings relating to non-compliance, investigate and seek penalties.
  • Acts of committee members are taken to be of the association. Committee members can breach the Act and be liable to civil penalties (s98B).

Australian Privacy Principles (APPs)

What Is Required To Comply?

The APPs are principles. There is no one way of complying with each principle. Each APP entity needs to adapt their compliance approach to their circumstances. The more stringent obligations apply to those handing sensitive information.

The following is a summary only of key aspects of the APPs. The whole of the APPs should be read.

APP 1- Open and transparent management of personal information

APP entities must:

  • manage personal information in an open and transparent way;
  • take reasonable steps to implement practices, procedures and systems to ensure compliance; and
  • have a clearly expressed and up to date privacy policy. Having it on a website is sufficient.

APP 2 – Anonymity and pseudonymity

Unless impractical, authorised or required by law, where possible individuals should have the option of not identifying themselves when dealing with an APP entity.

APP 3 – Collection of solicited personal information

Personal information should only be collected where reasonably necessary for the entity's functions or activities, and then directly from the individual. An APP entity must not collect sensitive information unless the individual consents and it is reasonably necessary for a function or activity of the entity.

A non-profit organisation may collect sensitive information if the information relates to the activities of the organisation and the information relates solely to members of the organisation or individuals with regular contact with the organisation in connection with its activities, eg collecting health information which may impact on a participant's capacity to participate or medic alert type information in case of emergency.

APP 4 – Dealing with unsolicited personal information

If unsolicited personal information is received which it could not have collected, it must be destroyed or de-identified. If it could have been collected, APPs 5 – 13 apply to that information.

APP 5 – Notification of collection of personal information

Notification of collection of personal information must be provided to an individual about the time of collection by reasonable steps, including details about the entity. Disclosure can be contained in the privacy policy.

APP 6 – Use or disclosure of personal information

Personal information collected for one purpose ("primary purpose") may not be used for a secondary purpose without the individual's consent or unless exceptions apply.

APP 7 – Direct Marketing

Personal information may not be used by an APP entity for direct marketing unless an exception applies. Sensitive information can only be used for direct marketing with consent.

APP 8 – Cross-border disclosure of personal information

Before personal information is disclosed to an overseas recipient (incl. cloud storage) reasonable steps must be made to ensure the recipient does not breach the APPs or that there is a similar regime in place or the individual agrees.

APP 9 – Use of government identifiers

Government identifiers, eg Tax File Numbers, must not be used or disclosed unless, for eg, it is reasonably necessary to identify the individual for the organisation's activities or authorised by law.

APP 10 – Quality of personal information

Reasonable steps must be taken to ensure personal information it collects is accurate, complete and up to date.

APP 11 – Security of personal Information

Reasonable steps must be taken to protect information collected from misuse, interference, loss, unauthorised access or modification or disclosure, and to destroy or de-identify information no longer required.

APP 12 – Access to personal Information

Subject to exceptions, an APP entity must give an individual access to the personal information held about them on request and have a process for dealing with the request.

APP13 – Correction of personal information

Reasonable steps must be taken to correct incorrect personal information.

What Does This Mean For Not-For-Profits Sporting Associations?

If you are not an APP entity, or not sure?

  • Carefully consider the Privacy Act (section 6) and APPs to ensure that you are not required to be compliant.
  • Do you wish to opt-in to voluntarily be an APP entity? If so there is an opt-in register. Benefits may include increased confidence and trust from members or those providing personal information

Are you an APP entity?

APP entities must comply with the Privacy Act and the APPs. To comply:

  • Review what personal information or sensitive information is handled.
  • Review how it is collected, disclosed, stored, kept secure, destroyed securely, who has access to it.
  • Are higher protection levels provided for sensitive information such as health information? What sensitive information do you collect and why? Who do you give it to?
  • Consideration must be given to implementing new practices, systems, documents, procedures to ensure compliance.
  • Is it possible for interaction with you anonymously or by pseudonym, without identification?
  • Review any existing privacy policy or draft one. Make sure references to National Privacy Principles are changed to Australian Privacy Principles and content updated to comply with the APPs.
  • Make your privacy policy available in an appropriate form, for free. Website is easiest, otherwise in printed form provided.
  • Consider having membership forms refer to the privacy policy and acknowledging/accepting the policy terms. Usually the age of consent would need to be at least 15 for presumption of capacity or a parent/guardian would need to sign.
  • Do you send information overseas or have cloud storage of data on servers located overseas? If so there are additional requirements to meet to ensure that personal information will be handled overseas in accordance with the APPs.
  • Practices, procedures and systems need to be considered to ensure personal information collected, used and disclosed is up to date, complete, and accurate and relevant for the purpose.
  • What steps or security measures are required to ensure that personal information collected is protected from misuse, interference, unauthorised accessing, loss, unauthorised disclosure, corruption. Information security is increasingly becoming a major issue.
  • Consideration must be given to implementing new practices and procedures for handling privacy inquiries, correction of personal information held and complaints handling.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Kott Gunning is a proud member of

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions