Australia: When disclosing information to parents is a notifiable data breach

Last Updated: 18 May 2019
Article by Charles Sweeney

The recent anniversary of the commencement of the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth) provides a timely reminder to schools and other private educational institutions to review their compliance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles.


Most private schools and private tertiary educational institutions are APP entities because they:

  • are large organisations (with a turnover of more than $3 million);
  • are connected to a larger organisation that is covered by the Privacy Act, or
  • provide a health service and hold health information, including where providing a health service is not their primary activity.


Under the new regime, a school or institution must notify the Office of the Australian Information Commissioner (OAIC) and affected individuals as soon as practicable after becoming aware that there are reasonable grounds to believe an 'eligible data breach' has occurred. Eligible data breaches arise when:

  1. personal information held by the entity is lost or subjected to unauthorised access or disclosure (a 'data breach');
  2. the breach is likely to result in serious harm to individuals to whom the information relates; and
  3. the entity has not been able to prevent the risk of serious harm with remedial action.

'Serious harm' is intended to encompass a broad spectrum of harms, including serious physical, psychological, emotional, financial, or reputational harm.

Whether a data breach is likely to result in serious harm will depend on numerous considerations. These include:

  • the type of personal information involved
  • the persons who have obtained the information
  • the sensitivity of the information
  • the security measures protecting the information
  • the circumstances of the data breach
  • the nature of the harm that may result.

Serious harm is more likely if the information is 'sensitive information' or is commonly used for identity fraud.


The concept of a 'data breach' is wide reaching and has some interesting applications in an educational context. For example, it includes situations where parents request access to a student's private information.

Providing information such as a report card to a parent would not be considered a 'data breach', as in most circumstances a child would expect that information would be provided to their parents. However, schools and institutions should be mindful of other factors that may impact a student's reasonable expectations in relation to disclosure of a report card, for example, where the parents are not the student's primary care giver.

Schools and institutions do collect other kinds of personal and sensitive information about their students and disclosing this information to parents could amount to a data breach. For example, a counsellor or other staff member becoming aware that a student is sexually active or being bullied and providing that information to a parent could be a data breach.

In some cases, a teacher or other staff member's overriding reporting obligations under child protection legislation or their duty of care will mean that they must disclose the information. Disclosure would be required in a situation where a teacher or other staff member suspects that a student is at risk of harm or abuse. Students should be informed about these obligations, so they are aware that information that they have told a trusted staff member may be disclosed. It is important that staff maintain a balance between their legal obligations and maintaining a student's trust, so that they can effectively perform their duties.

The school or institution should have policies that deal with when counsellors and staff will disclose personal or sensitive information to parents to ensure that students are aware that the information may be disclosed in some circumstances.
When deciding to disclose information about a non-education related matter to a parent, schools and institutions must consider:

  • the age of the student
  • the best interests of the student
  • the school's duty of care to the student and any other relevant child protection obligations
  • whether the parents need to be informed
  • whether the student would reasonably expect the information to be disclosed.

School and institutions should have policies in place that outline what non-educational disclosures may be made and to whom the information may be disclosed. These policies should be available to parents and students.

If a school or institution is unsure whether the disclosure of personal or sensitive information could amount to a data breach, it should seek advice before making that disclosure.


If an eligible data breach occurs, the school or institution must provide a statement to the OAIC and notify individuals at risk of serious harm as soon as practicable. If it is impracticable to notify the affected individuals, the school or institution must publish a copy of the statement on its website and take reasonable steps to bring its contents to the individuals' attention.

The statement must include the following information:

  • the identity and contact details of the school or institution
  • a description of the data breach believed to have occurred
  • a description of the kinds of information concerned
  • recommendations about the steps individuals should take to avoid or mitigate harm from the data breach

Importantly, the privacy regime relieves schools or institutions of the need to notify the OAIC if they take prompt action to remedy a data breach and effectively avert the risk of serious harm. This highlights the importance of having strong plans and procedures in place to respond to data breaches, as such plans and procedures may help schools avoid any possible reputational harm.

© Cooper Grace Ward Lawyers

Cooper Grace Ward is a leading Australian law firm based in Brisbane.

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.

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

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

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
Related Articles
Related Video
Up-coming Events Search
Font Size:
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 (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

To Use 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.


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.


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