Privacy Act 1988

PART III - INFORMATION PRIVACY  

Division 1 - Interferences with privacy  

SECTION 13G   CIVIL PENALTY PROVISION FOR SERIOUS INTERFERENCE WITH PRIVACY OF AN INDIVIDUAL  

Civil penalty provision

13G(1)    

An entity contravenes this subsection if:

(a)    the entity does an act, or engages in a practice, that is an interference with the privacy of an individual; and

(b)    the interference with privacy is serious.

Note:

The court may determine that an entity has contravened section 13H if the court is satisfied of paragraph (a) but not paragraph (b) (see section 13J ).

13G(1A)    

Subsection (1) is a civil penalty provision.

Note: Section 80U deals with civil penalty provisions in this Act.

Factors that may be taken into account in determining if interference with privacy is serious

13G(1B)    

In determining whether an interference with privacy is serious, a court may have regard to any of the following matters:

(a)    the particular kind or kinds of information involved in the interference with privacy;

(b)    the sensitivity of the personal information of the individual;

(c)    the consequences, or potential consequences, of the interference with privacy for the individual;

(d)    the number of individuals affected by the interference with privacy;

(e)    whether the individual affected by the interference with privacy is a child or person experiencing vulnerability;

(f)    whether the act was done, or the practice engaged in, repeatedly or continuously;

(g)    whether the contravening entity failed to take steps to implement practices, procedures and systems to comply with their obligations in relation to privacy in a way that contributed to the interference with privacy;

(h)    any other relevant matter.

Maximum pecuniary penalty

13G(2)    

The amount of the penalty for a contravention of subsection (1) by a person other than a body corporate is an amount not more than $2,500,000.

13G(3)    

The amount of the penalty for a contravention of subsection (1) by a body corporate is an amount not more than the greatest of the following:

(a)    $50,000,000;

(b)    if the court can determine the value of the benefit that the body corporate, and any related body corporate, have obtained directly or indirectly and that is reasonably attributable to the conduct constituting the contravention - 3 times the value of that benefit;

(c)    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.

13G(4)    

Subsection (3) applies despite paragraph 82(5)(a) of the Regulatory Powers Act.

Meaning of adjusted turnover

13G(5)    

For the purposes of paragraph (3)(c) , the adjusted turnover of a body corporate during a period is the sum of the values of all the supplies that the body corporate, and any related body corporate, have made, or are likely to make, during the period, other than:

(a)    supplies made from any of those bodies corporate to any other of those bodies corporate; or

(b)    supplies that are input taxed; or

(c)    supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999 ) ; or

(d)    supplies that are not made in connection with an enterprise that the body corporate carries on; or

(e)    supplies that are not connected with the indirect tax zone.

13G(6)    

Expressions used in subsection (5) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.

Meaning of breach turnover period

13G(7)    

For the purposes of paragraph (3)(c) , the breach turnover period for a contravention means the longer of the following periods:

(a)    the period of 12 months ending at the end of the month in which the contravention ceased, or proceedings in relation to the contravention were instituted (whichever is earlier);

(b)    the period:

(i) starting at the beginning of the month in which the contravention occurred or began occurring; and

(ii) ending at the same time as the period determined under paragraph (a) .