Clarification and addition
New and more detailed information has come to hand since the text below has been published on our site. In particular, the office of the federal Privacy Commissioner has responded with some detailed explanations about the effects of the privacy law on the work of private investigators.
Furthermore, the Australian Law Reform Commission has released it's final report into the Privacy Act and privacy objectives in Australia. Its recommendations are very likely to be wholly or partly adopted by federal government through changes in legislation and policy. This means there will be a further, real impact of the laws on private investigators applying not only to privacy law itself, but areas such as surveillance and communication and telecommunication interception.
The ALRC's report is comprehensive and mind-boggling in its volume, but careful browsing of it should lead you to importat areas affecting private investigators.
The National Privacy Principles under the Privacy Act - Australia
Confusion and ignorance prevail about the interpretation and effects of the privacy law which seeks to protect the individual's right to privacy in Australia and Australians overseas.
Many private investigators still seem unfamiliar with the privacy law and how it affects their work, which after all, usually relates to investigating the very issues which the law seeks to protect.
Many private investigators believe they are exempt under the Act.
We recommend you visit the Privacy Commissioner's website http://www.privacy.gov.au/ and specifically Information Sheet 12 [ click ] which may clarif matters.
We have lodged a request with the Privacy Commissioner for a formal clarification on the matter of private investigations viz the Act. This information will be published here as soon as it comes to hand.
The area of public records is very much relevant to private investigators who persists with the use such databases as electoral rolls or phone directories on CD. It is wrongly assumed by many that because these records are "public", using them will not breach the new legislation.
There appears to be misunderstanding of how the Privacy Act applies in these circumstances.
The Privacy Act already requires organisations to collect personal information fairly and to tell people how their information is being used and how to contact the organisations that hold their information" said Mr Pilgrim, Deputy Privacy Commissioner. It's fair to heed his comments and, if nothing else, to make an urgent submission to the inquiry. So it will be looked at, for example, whether using phone books with reverse search facility goes counter to the purpose for which phone subscribers initially supplied their information for listing.
Many private investigators believe they are covered by the exemptions where one investigates "unlawful activities" or "fraud". This is wrong, because most private investigators in Australia rarely come within a Cooee of criminal evidence of fraud and to be covered by such exemption, one has to start from the premise that there is already evidence of criminal activity even before commencing the investigation.
Typically an insurance company issues instructions to investigate based on general presumption and a "fishing expedition", dealing with civil law issues and not criminal law.
IMPORTANT
NPP 2.1(f) allows an organisation to use or disclose personal information when it has reason to suspect that unlawful activity has been, is being or may be engaged in. 'Unlawful activity' refers to acts or omissions that are expressly prohibited by Commonwealth, State or Territory law. NPP 2.1(f) requires a factual basis for suspecting unlawful activity. The suspected unlawful activity will ordinarily relate to the operations of the organisation.
A further requirement for relying on NPP 2.1(f) is that:
- the use or disclosure of personal information is a necessary part of an organisation's investigation of the unlawful activity; or
- the use or disclosure occurs in the context of the organisation reporting its concerns to relevant person or authority.
If an organisation cannot effectively investigate or report suspected unlawful activity without using or disclosing personal information, then the use or disclosure would be regarded as necessary to investigating or reporting the unlawful activity.
'Relevant persons or authorities' to which an organisation may report unlawful activity include but are not limited to:
- 'enforcement bodies' as defined in section 6(1) of the Privacy Act;
- agencies and regulatory authorities such as Austrac and State and Territory Departments of Fair Trading and Offices of State Revenue;
- self-regulatory authorities such as the Australian Stock Exchange, the Telecommunications Industry Ombudsman and the Banking Industry Ombudsman.
Entities not covered by the Privacy Act
Small business operators
A small business with an annual turnover of $3 million or less is a small business operator and so not covered by the Privacy Act unless it:
- is related to a business (that is, its holding company or any subsidiary company) that has an annual turnover of greater than $3 million;
- provides a health service and holds health information other than in an employee record;
- discloses personal information about another individual to anyone else for benefit, service or advantage (unless it does so with the consent of the individual concerned or is required or authorised to do so under legislation);
- provides a benefit, service or advantage to collect personal information about another individual from anyone else (unless it does so with the consent of the individual concerned or is required or authorised to do so under legislation);
- is a contracted service provider for a Commonwealth contract (even if it is not a party to the contract);
- is prescribed by regulation; or
- opts in to the legislation.
Individuals
The Privacy Act does not cover the collection, use and disclosure of personal information by an individual unless it is done in the course of running a business. The Privacy Act does not apply to personal information that individuals collect, hold, use or disclose for the purposes of their personal, family or household affairs. The activities of individuals operating a business in their own names may be subject to the Privacy Act unless the business is a small business operator or one of the other exemptions applies.
If you know of any other relevant services or resources anywhere in the world, please share it with others by emailing us at .
