Australian Privacy Principle 11–security of personal information
Australian Privacy Principle 11 (APP 11) protects personal
information by imposing specific obligations on both agencies and organisations
which hold that information. The principle also provides that entities take
reasonable steps to destroy or de-identify the personal information once it is
no longer needed. The Companion Guide noted that keeping personal information
for only as long as 'reasonably necessary is an effective way of reducing the
risk that it may be mishandled'. In addition, these obligations are in line
with international best practice on privacy protection.
There are currently requirements within the National Privacy Principles (NPPs)
and Information Privacy Principles (IPPs) which ensure agencies and
organisations protect the personal information in their possession. NPP 4
requires organisations to take reasonable steps to protect personal information
from misuse and loss and from unauthorised access, modification or disclosure
as well as taking reasonable steps to destroy or de-identify information no
IPP 4 requires that personal information is protected, by such
security safeguards as it is reasonable in the circumstances to take, against
loss, against unauthorised access, use, modification or disclosure, and against
other misuse. If the personal information is provided to a service provider, everything
reasonably within the power of the agency is to be done to prevent unauthorised
use or disclosure of information contained in the record.
The Australian Law Reform Commission (ALRC) noted the importance of a
data security principle in privacy legislation, which is reflected by the
provisions set out for both agencies and organisations to 'take reasonable
steps to maintain the security of the personal information that they hold'. In
addition, there are a number of international instruments relating to privacy
which ensure the security of personal information.
The ALRC review focussed on:
how agencies and organisations should fulfil their data security
obligations during the active life of records that contain personal information;
disclosure of personal information to third parties; and
the obligations of agencies and organisations to destroy or
render non-identifiable personal information when it is no longer needed.
The ALRC recommended the data security principles be consolidated and
simplified into a single principle. However, the ALRC commented that a consolidated
principle would 'need to be sufficiently flexible to accommodate the
differences' between the functions of the private sector and the public sector.
The ALRC went on to comment that the criteria in the principle should
ensure that personal information is 'protected from misuse and loss and from
unauthorised access, modification or disclosure'. The ALRC explained that 'these
criteria balance the role of the "Data Security" principle and those
acts and practices that can be regulated more appropriately through other
privacy principles'. Furthermore, the ALRC noted that some authorised access,
use and disclosure can be improper and would not be regulated by the criteria
above and are regulated elsewhere in the privacy principles by the data quality
and use and disclosure principles.
The ALRC also commented on the issue of personal information exchanged
over the internet and whether it should be regulated by provisions in this
principle. However, in keeping with the recommendation to keep the privacy principles
technologically neutral, the ALRC considered that this step would not be
In relation to the requirement on entities to take 'reasonable steps' to
prevent the loss and misuse of personal information, the ALRC commented that 'implementing
privacy-enhancing technologies will be one of the main ways through which
agencies and organisations will comply with the requirement'. The ALRC
acknowledged concerns by the Office of the Privacy Commissioner (OPC) on
providing appropriate guidance on technological developments and recommended 'that
the Privacy Act be amended to empower the Privacy Commissioner to
establish expert panels at his or her discretion' to provide guidance on
The ALRC considered the requirement of IPP 4 that provides that if
an agency discloses personal information to a third party to carry out a
service, the agency is required to take steps to prevent the unauthorised use
and disclosure of this personal information by the third party involved. The
ALRC did not recommend that such a requirement be included in the 'Data
Security' principle. It noted that agencies remain regulated by section 95B of
the Privacy Act
which provides that an 'agency must take contractual measures to ensure that
contracted service providers do not breach the privacy principles'. However,
the ALRC commented that its position assumed implementation of a number of
other recommendations including removal of the small business exemption from
the Privacy Act and changes to the cross-border flow of data provisions.
If these recommendations are implemented, the ALRC concluded that 'there will
be few, if any, situations where a contracted party will not be under an
obligation to comply with the Privacy Act.
However, the ALRC remarked that if the above recommendations are not
implemented 'then a requirement for organisations to take steps to protect
information disclosed to a third party...will be an integral component of the Privacy
In relation to the provision to de-identify personal information that is
no longer needed, the ALRC recommended the phrase 'render de-identifiable' be
used instead the NPP 4 wording of 'permanently de-identify'. The ALRC noted
that this rephrasing would make it clearer that data destruction should include
the prevention of re-identification of data in the future.
Another concern raised during the ALRC review was the possible conflicts
between the requirement to destroy data and the requirements of agencies to
retain information. According to the ALRC, '[t]he data destruction requirement
included in the "Data Security" principle must be worded so as to
accommodate the various reasons why agencies and organisations may need to
retain personal information'.
The ALRC noted that agencies are prohibited by the Archives Act 1983 to
destroy Commonwealth records without the permission of the National Archives,
subject to certain exceptions. The ALRC noted however that the interaction
between subsection 24(2) of the Archives Act and the destruction
requirements of the Privacy Act were not clear. The ALRC recommended
that 'agencies responsibilities under the Archives Act should take precedence
over the data destruction requirement in the data security principle'.
Another issue raised in the ALRC review was the concept of giving an
individual the right to request an agency or organisation to destroy personal
information that relates to that individual. The ALRC did not support this
approach to data destruction, noting that it would be too rigid and would
encourage destruction even when another method of dealing with the information
may be more appropriate for example, rendering the information non-identifiable.
The ALRC noted that rendering information non-identifiable still allows entities
to evaluate the effectiveness of their projects, while not conflicting with the
archives legislation obligations and ensuring that personal information is
In relation to guidance, the ALRC recommended that the OPC develop and
publish guidance on matters including what constitutes 'reasonable steps' to
prevent the misuse and loss of personal information by organisations and
agencies; when it is appropriate to destroy or render non-identifiable personal
information; the interaction between the data destruction requirements and
legislative records retention requirements; and the manner in which personal
information should be destroyed or rendered non-identifiable.
The Government responded positively to all the recommendations made by
the ALRC in regards to the data security principle. The Government accepted that
a data security principle should ensure the protection of personal information from
loss and misuse, as well as the requirement to destroy and render non-identifiable
information that is no longer needed. The Government noted that in relation to
data destruction, the requirements on agencies to destroy or retain information
as set out by the Archives Act 1983 would not be affected.
The response supported the ALRC recommendations to have the OPC develop
and publish guidelines on what constitutes 'reasonable steps' and the expected requirements
on entities to destroy or render personal information non-identifiable.
The issue of security of personal information was important to many of
the submitters to this inquiry. Microsoft commented that 'security as an
absolutely critical element of a privacy framework. Poor security makes privacy
The Office of the Victorian Privacy Commission welcomed APP 11, remarking
that it largely mirrors NPP 4 and Victorian IPP 4.
Similarly, the Australian Institute of Credit Management supported this
principle and Yahoo!7 broadly agreed with its flexible approach.
As discussed in the previous chapter, Privacy NSW suggested that
APP 10 and APP 11 should be relocated within the legislation to
better reflect the information cycle, that is, the quality principle and the
security principle should be placed after the notification principle and before
the use and disclosure principle.
Protecting personal information
APP 11(1) provides that an entity must take such steps as are
reasonable in the circumstance to protect information from misuse, interference
and loss and from unauthorised access, modification or disclosure. The Office
of the Health Services Commissioner Victoria indicated support for APP 11(1)
as did the Australian Bankers' Association (ABA) which welcomed the stronger
emphasis on 'organisations to take all reasonable steps to ensure their systems
and processes are secure'.
Other submitters commented on the 'reasonable steps' requirement, the
protection of information accessed by contractors to agencies, and the inclusion
of the term 'interference'.
Microsoft submitted that 'getting security right is a bit more objective
than some other aspects of privacy' and that the APPs could 'accommodate some
more specific tests provided these did not affect cost effectiveness and were
conducive to innovation'. In support of this view, Microsoft suggested 'a
specified list of factors in the data security principle to help guide any
determinations as to whether an organisation has taken "reasonable
steps" to secure personal information it holds'. Microsoft has suggested
this list be included in the legislation, or at least included with guidance
issued by the Office of the Australian Information Commissioner once the
legislation is in place.
The NSW Department of Justice and Attorney General commented on the
security requirements for information held by agencies which may be accessed by
a contractor. It noted that, under section 95B of the Privacy Act, an agency
must take contractual measures to ensure that contracted service providers do
not breach the privacy principles. However, APP 11 imposes no such
requirement. While many organisations will be subject to APP 11, the small
business exemption means that some organisations which may handle very
sensitive personal information will not fall within the ambit of APP 11. The
NSW Department of Justice and Attorney General recommended that consideration
be given to replicating the requirement imposed on agencies by section 95B (and
NSW legislation) 'in any model privacy laws if it is not to be provided for in
The security of information in the hands of a contractor was also raised
by the Privacy Interest Advocacy Centre (PIAC) in its submission to the ALRC
review. PIAC stated that it was important to 'ensure that the data disclosed to
third parties under contractual arrangements is maintained'.
The National Association of Information Destruction (NAID-Australasia) suggested
that APP 11 include a direction to entities that data protection policies
and procedures be documented in writing. NAID-Australasia suggested that benefits
would arise from such a requirement: having written policies and procedures is
the only way to ensure that employees and vendors are given proper direction;
and written policies and procedures is the only way an entity can demonstrate
that it comprehends and takes its responsibilities to protect personal
Use of the term 'interference'
The ABA commented on the inclusion of the term 'interference' in
APP 11(1)(a), and noted it is not present in the corresponding NPP. The ABA
stated that it is not clear what the term intends to address, and sought
specific guidance, with examples, on how it may occur and how 'interference'
differs from the other listed factors of 'misuse', 'unauthorised access' and 'modification'.
The Australian Direct Marketing Association (ADMA) also noted the inclusion of
the new term 'interference' in APP 11 and commented that the term is used
broadly and without proper definition. ADMA sought further clarification on
'how broadly the obligations that stem from this inclusion would be expected to
Telstra expressed a similar view and went on to state that 'interference'
could be viewed as 'unlawful interception' which requires further technological
protections and 'degrees of encryption'. Telstra commented this could 'unfairly
impose responsibility for external events or attacks' on organisations and lose
the technologically neutral objective of the legislation. Telstra suggested the
removal of the term 'interference'.
The Department of the Prime Minister and Cabinet responded to these
concerns and stated:
The inclusion of 'interference' in APP 11 is intended to
recognise that attacks on personal information may not be limited to misuse or
loss, but may also interfere with the information in a way that does not amount
to a modification of the content of the information (such as attacks on
computer systems). It is correct that this element may require additional
measures to be taken to protect against computer attacks etc, but the
requirement is conditional on steps being 'reasonable in the circumstances'.
Practical measures by entities to protect against interference of this nature
are becoming more commonplace.
The use of the term 'interference', which focuses on the
activity rather than the means of the activity, ensures that the
technologically neutral approach to the APPs is retained.
Destruction of personal information
APP 11(2) provides for the destruction of records no longer
required. NAID-Australasia supported information destruction as being a
reasonable precaution for the security of personal information. However, it noted
that the concept of destruction is often misunderstood, and gave the example of
organisations relying on 'casual disposal or simple recycling as methods of
destruction'. In order to clarify the meaning of destruction, NAID-Australasia
recommended a definition of destruction within the definition section of the
legislation. NAID-Australasia believed 'it is possible to define
"destruction" while remaining technologically neutral, reasonable and
The Office of the Health Services Commissioner Victoria commented that
the provisions of APP 11(2) are not appropriate for the health industry as
'there may be a lapse of time in people re-presenting for treatment, or there
may be medical conditions that are slow to progress'. The Commission
recommended that a minimum retention period for records be included in this
principle, as is the case in Victoria, where the Health Records Act
provides for a minimum retention period of seven years for health records. The
Commission recommended that state and federal laws should continue to operate
side by side, to ensure the seven year retention period is maintained.
The Financial Services Council (FSC) requested further guidance on when
it is appropriate to destroy or de-identify personal information, and the
'interaction between data destruction requirements and legislative record
retention requirements'. The Council stated that retaining records for seven to
ten years from the last date of interaction with the client is standard
practice in the financial services industry and recommended that the
requirement to destroy or de-identify personal information 'commence after
other legal requirements for record retention timeframes have been met'.
Yahoo!7 suggested that the provisions for the retention of personal
information rely on 'legitimate business purposes' rather than the purposes of APP 10
and APP 11.
Google Australia stated that subsection APP (2)(c) should be
amended to allow for compliance with foreign laws. Google noted that they
conduct business worldwide and are required to comply with both Australian
Privacy Laws and Foreign Privacy Laws.
(The committee has commented on this matter in chapter 3, see paragraphs
Privacy Law Consulting Australia raised concerns about this privacy
principle conflicting with section 24 of the Archives Act and creating a
circular process of interaction between the provisions of the two Acts. The
Consultancy suggested including information within APP 11 to explain its
interaction with section 24 of the Archives Act.
Similar points were raised by the ALRC (see para 14.18). The Government
response stated that the ALRC's recommendation in relation to destruction or
de-identifying information 'does not affect the operation of the Archives
Act 1983 on how agencies retain personal information'.
The issue raised by the NSW Department of Justice and Attorney General
and the Privacy Interest Advocacy Centre concerned the protection of
information held by agencies which may be accessed by third parties, for
example, contractors. The committee notes that the ALRC did not recommend such
a requirement. Further, the ALRC commented that agencies remain subject to
section 95B of the Privacy Act which provides that an agency must take
contractual measures to ensure that contracted service providers do not breach
the privacy principles. The Government has not indicated that a provision similar
to section 95B will not be retained in the new Act. However, the committee will
consider this matter further when the relevant exposure draft is provided.
In relation to comments concerning the inclusion of the term
'interference' in APP 11(1)(a), in particular that its meaning is unclear,
the committee notes that the department has indicated that 'interference' is intended
to recognise that attacks on personal information may not be limited to misuse
or loss, but may also interfere with the information in a way that does not
amount to a modification of the content of the information. The department
provided the example of 'interference' through an attack on a computer system.
The committee considers that this is an essential protection for personal
information and supports the inclusion of the term 'interference'. However, the
committee believes compliance with this principle would be improved if the term
'interference' was defined or a note was included to explain its meaning.
The committee recommends that a definition of the term 'interference'
used in proposed APP 11(1)(a), pertaining the security of personal
information, be provided or a note included in the legislation to explain its
meaning in this context.
The committee considers that the destruction of personal information no
longer required is an important matter. The committee notes the concerns raised
by NAID-Australasia that destruction of information is often misunderstood and
approached in a less than appropriate manner. The committee considers that it
will be important that guidance is provided in relation to what constitutes
'destruction' in relation to personal information. The committee also notes
that submitters called for guidance on range of other matters and that the need
for guidance from the Office of the Australian Information Commission was
recommended by the ALRC and accepted by the Government.
The committee recommends that the Australian Information Commissioner
provide guidance on the meaning of 'destruction' in relation to personal
information no longer required and the appropriate methods of destruction of
Submitters did not comment on the use of the term 'to ensure that the
information is no longer personal information' in relation to APP 11
however, comments were made in relation to APP 4, see chapter 7.
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