Where to now, Big Brother?

Australia ranks among the worst in the world for data breaches with around 22 accounts hacked every minute.1

With the recent spate of high-profile data breaches, the government is looking to enhance data protections and protect the privacy of citizens. In February 2023, the Attorney-General released a much anticipated report that included 116 proposals to reform and modernise the Privacy Act 1988 (Cth)(Act). This was the culmination of an ACCC report into Australia’s privacy laws in 2019, and a review undertaken by the AttorneyGeneral’s office in 2020, to bring Australia’s

New penalties under the Act: million privacy laws into the digital era, strengthen privacy protections for individuals and streamline compliance for businesses working across international borders.

2022 amendments to Australia’s privacy law

In December 2022, the federal government increased penalties and strengthened the enforcement powers of the Office of the Australian Information Commissioner (OAIC) under the Act. The OAIC also has a wider set of regulatory tools and information-gathering powers at its disposal. Information sharing has also been improved within the OAIC and among Australian and foreign regulators.

Australian privacy law also now applies to organisations doing business in Australia regardless of whether information is collected in Australia

Findings of 2023 review

The 2023 report into Australia’s privacy laws considered whether the Act was still fit for purpose.

The proposed reforms will impact most, if not all, aspects of the Australian economy and businesses that fall under the Act. Key changes proposed include:

The greater of:

• A$50 million

• Three times the value of benefits obtained or attributable to the breach (if quantifiable)

• 30% of the corporation’s ‘adjusted turnover’ during the ‘breach turnover period’ (if the court cannot determine the value of benefit obtained)*

Maximum civil penalty for individuals

A$444,000

A $2.5 million

* ‘Adjusted turnover’ means the sum of the value of all supplies made by the entity in connection with Australia. The ‘breach turnover period’ begins at the start of the month in which the offence or contravention occurred or began occurring and ends at the end of the month in which it ceased – subject to a minimum ‘breach turnover period’ of 12 months.

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• expanding the definition of ‘collection’ to include information obtained from any source and by any means, including inferred or generated information

• removing the small business exemption (for organisations with an annual turnover of less than AU$3 million)

• requiring regulated APP entities to ensure all collections, uses or disclosures of personal information are fair and reasonable, while ensuring increased safeguards are in place for certain high-risk information handling activities, or that these are prohibited.

Other proposals include:

• introducing a new 72-hour window for APP entities to report eligible data breaches to the OAIC

• bolstering individuals’ rights concerning their personal information, including the right to request the

• requiring APP entities to improve the quality of their privacy collections notices and consents, including data retention timeframes

• mandating privacy impact assessments for activities that attract high privacy risks

• introducing a right for individuals to apply directly to a court for relief of privacy interferences

• creating a statutory tort for serious invasions of privacy

• creating standard contractual clauses for use in relation to cross-border data transfers

• heightening the OAIC’s regulatory powers.

Staying compliant

While it’s uncertain how many of the proposed reforms will be implemented, it’s an area that’s undergoing significant change. HRIA members, large and small and determine how it may impact their business and operations. To prepare for the inevitable changes, members should:

• map their data footprint and consider the volume and types of data currently being held

• identify what security and protective data measures may need to be enhanced going forward

• consider whether any exemptions are currently being relied on under the Act and if they may be earmarked for change

• look at their existing contracts

• determine their data breach responses and how eligible data breaches will be assessed, including whether these can be notified within the newly proposed 72-hour window.

If you require assistance with any privacy, data or cybersecurity related issues please get in touch.

1. https://thenewdaily.com.au/finance/financenews/2022/12/13/data-breaches-medibank/.

On The Cover

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ELEVATING WORK PLATFORM ASSOCIATION OF AUSTRALIA INC

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EWPA BOARD OF DIRECTORS

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Opinions published in Hire & Rental Magazine do not necessarily reflect the opinions of the association or the Editor. The HRIA accepts no responsibility for the accuracy of any information contained in this magazine and readers should rely upon their own enquiries in making decisions related to their own interest. All rights reserved.

ISSN 1838-1197

TIM NUTTAL EWPA VICE PRESIDENT