The Privacy (Australian Government Agencies — Governance) APP Code 2017 (the Code), which commenced on 1 July 2018, represents a step towards best practice privacy governance in the Commonwealth.
The Code imposes a host of new requirements on Commonwealth agencies, adding to existing obligations under the Privacy Act 1988 (Privacy Act), and symbolises the commitment of the Commonwealth government to the protection of privacy and greater transparency in information handling practices.
The impetus for the Code’s development lies in the increasing emphasis in current policy-making on improving the availability of public data, and the ongoing shift towards the digital and online provision of many government services. In this context, the Code may help build public trust and confidence in government information handling practices and any future uses of public data by agencies.
Broadly, the Code imposes obligations on Commonwealth agencies in respect of:1
- their privacy management and governance (Part 2 of the Code);
- Privacy Impact Assessments in relation to high privacy risk projects (Part 3 of the Code); and
- their internal privacy capability (Part 4 of the Code).
Whilst some of these obligations required an immediate response from agencies prior to 1 July 2018, many of the requirements set out in the Code are ongoing, and agencies will need to vigilantly monitor their compliance with the Code.
This article provides an overview of the requirements of the Code to assist agencies in managing their compliance. We have also included a checklist which agencies may wish to have regard to as part of their ongoing compliance activities.
Preliminary requirements and ongoing obligations
By now, your agency should have made arrangements to:
- put in place a privacy management plan (section 9 of the Code);
- designate a Privacy Officer (section 10 of the Code);
- designate a senior official as Privacy Champion (section 11 of the Code);2 and
- set up a Privacy Impact Assessment Register (section 15 of the Code).
Each of these initial requirements leads to further related ongoing obligations. Each agency to which the code applies will need to:
- maintain its privacy management plan;3
- measure and document its performance against its privacy management plan at least annually;4
- ensure that a system is in place to provide for the proper handling of internal and external privacy enquiries, privacy complaints, and requests for access to and correction of personal information made under the Privacy Act;5
- maintain a record of the personal information that it holds;6
- at all times have at least one Privacy Officer, and when the contact details of the Privacy Officer(s) change, keep the OAIC notified in writing;7
- ensure that there is a culture of privacy within the agency that values and protects personal information;8
- ensure that there is leadership within the agency on broader strategic privacy issues;9 and
- ensure that regular reports are provided to the agency’s executive in relation to any privacy issues arising from the agency’s handling of personal information.10
These requirements may necessitate changes to policy and procedure within an agency. For example, internal policies will need to reflect the requirement to annually measure and document performance against its privacy management plan.
Helpfully, the OAIC has launched a Privacy Officer toolkit and suggests that agencies should sign up to its Privacy Professionals’ Network to receive notifications on developments in Code resources and events.
Privacy education and training
In addition to these requirements, section 16 of the Code sets out an obligation for agencies to ensure that:
- appropriate privacy education or training is included in any staff induction program that the agency provides; and
- reasonable steps are taken to provide appropriate training annually to all agency staff who have access to personal information in the course of performing their duties.
The training must address the privacy obligations of agency staff, and agency policies and procedures relating to privacy. However, the level and amount of training that will be appropriate may differ depending on the degree to which the staff members deal with personal information in the course of their employment.11
Review of internal privacy processes
Additionally, an agency must regularly monitor its compliance with these privacy practices, procedures and systems. The OAIC expects agencies to consider (and where appropriate, respond to) the outcomes of such compliance reviews in accordance with the APPs and their privacy management plans.12
Privacy Impact Assessments
Significantly, the Code mandates that an agency must conduct a Privacy Impact Assessment for all ‘high privacy risk projects’.
A privacy impact assessment (PIA) is a written assessment that both identifies the impact that a project might have on the privacy of individuals and sets out recommendations for managing, minimising or eliminating that impact.13
A project may be a ‘high privacy risk’ project for these purposes if the agency reasonably considers that the project involves any new or changed ways of handling personal information that are likely to have a significant impact on the privacy of individuals.14 Where such a risk exists, the process of developing a PIA can be complex and time-consuming.
Pursuant to section 13, an agency may publish a PIA, or may choose to publish a summary version or an edited copy of the PIA, on the agency’s website; however neither is mandatory.15
Section 15 also imposes an obligation on agencies to maintain a register of the PIAs that they conduct. Agencies must publish this register, or a version of this register, on their websites. Agencies will need to include all PIA titles and any other relevant information on the published register, unless doing so would divulge information that it would not be appropriate to share publicly (e.g. for reasons of national security).16
Agencies must also provide a copy of the register and all PIAs that are listed on it to the OAIC on request.
The OAIC is developing guidance on the PIA requirements in the Code, including in relation to the assessment of privacy risk.
What are the consequences of not complying with the Code?
Pursuant to section 26A of the Privacy Act, an agency must not do an act, or engage in a practice, that breaches the Code. A breach of a registered APP code will be an interference with privacy by the entity under section 13 of the Privacy Act and subject to investigation by the Commissioner under Part 5 of the Act.
Australian Government Agencies APP Code Compliance Checklist
Before 1 July
Designate a Privacy Officer (pursuant to section 10 of the Code).
Designate a Privacy Champion (as required by section 11 of the Code).
Set up a Privacy Impact Assessment Register.
After 1 July
Maintain the privacy management plan.
Conduct Privacy Impact Assessments for all high privacy risk projects.
Maintain the Privacy Impact Assessment Register.
Have in place a system to handle privacy enquiries, complaints, and requests.
Maintain a record of all personal information held throughout the agency.
At all times, have a Privacy Champion and at least one Privacy Officer.
When the details of the Privacy Officer(s) change, keep the OAIC notified in writing.
Ensure that there is leadership within the agency on broader strategic privacy issues.
Include privacy education or training in all staff induction programs.
On a recurring basis
Measure and document performance against the privacy management plan at least annually.
Ensure that regular privacy reports are provided to the agency’s executive.
Take reasonable steps to provide training annually to all staff with access to personal information.
Regularly monitor compliance with privacy practices, procedures and systems.
Thanks to lawyer David Martin from our Sydney office for contributing to this article.
The Code places obligations on the ‘agency’ – which is defined by section 5 of the Code to take the same meaning as in the Privacy Act, excluding Ministers. Most corporate Commonwealth entities and non-corporate Commonwealth entities under the Public Governance, Performance and Accountability Act 2013 (Cth) will be covered by this definition, whilst certain Commonwealth companies will be excluded.
Although the term ‘senior official’ is not defined in the Code, the Explanatory Statement to the Code states that “given the strategic and cultural nature of the functions, the Commissioner would generally expect the Privacy Champion to be an SES employee, or a staff member of equivalent seniority”.
Section 9(3) of the Code. The Explanatory Statement clarifies that section 9(3) creates an obligation to maintain the privacy management plan.
Section 9(3) of the Code.
Section 10(5)(a) of the Code. The Explanatory Statement to the Code provides that the functions set out in section 10(5) may be performed by the Privacy Officer, or by another person.
Section 10(5)(b) of the Code.
Section 10(3) of the Code. It may be easiest for the agency to designate an officer as a Privacy Officer by reference to a position.
Section 11(4)(a) of the Code. The Explanatory Statement to the Code specifies that functions set out in section 11(4) may be performed by the Privacy Champion, or by another person.
Section 11(4)(b) of the Code.
See the Explanatory Statement to the Code.
See the Explanatory Statement to the Code.
See section 33D of the Privacy Act 1988.
Section 12(2) of the Code.
In the initial draft version of the Code, this was included as a mandatory obligation.
See the Explanatory Statement to the Code.
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