Increase in penalties for privacy breaches

Australia Publication October 2022

On 26 October 2022, the federal government tabled the Privacy Amendment (Enforcement and Other Measures) Bill proposing to significantly increase penalties for privacy breaches, among other reforms.

Introduced into parliament after several high profile breaches, the bill introduces four major reforms:

  1. providing the Information Commissioner with new powers to resolve privacy breaches;
  2. strengthening the Notifiable Data Breaches scheme;
  3. enhancing information-sharing powers to ensure regulators work together; and
  4. the increased penalty regime.

While the headline act of the Bill is the increased penalty regime, some of the expanded powers are worth reviewing, in particular the new information gathering, assessment and public notification powers to be granted to the Commissioner that may result in unintended consequences, particularly where an entity is in the process of handling a breach. 

The increase in penalties has been the most commented on aspect of the reforms. The Bill proposes corporate bodies that commit serious or repeated interferences with the privacy of an individual now face penalties that are the greater of:

  • $50,000,000;
  • 3 times the value of any benefit obtained as a result of the contravention;
  • if the court cannot determine the value of that benefit—30% of the adjusted turnover of the body corporate during the “breach turnover period” for the contravention

The Bill was read a second time on 26 October 2022 and then was referred to a Senate Committee for review. The public comment period closes on 7 November 2022. Should you wish to make any submissions, we would be happy to assist. 

The Senate Legal and Constitutional Affairs Committee will deliver its report on 22 November 2022. Depending upon the content of the report, the government may make additional amendments to the bill, following which it will continue its legislative journey.

Organisations should consider their privacy and data protection activities in light of the current climate and new laws coming into force. In this article we suggest some key questions to ask to begin that process.

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