Privacy Public Interest (Enhancing Privacy Protection) Amendment and Repeal Determination 2014

Administered by Attorney-General's Department

Legislation au F2014L00240 Not in force Legislative Instrument

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Explanatory Statement

Privacy Public Interest (Enhancing Privacy Protection) Amendment and Repeal Determination 2014

Privacy Act 1988 and Privacy Amendment (Enhancing Privacy Protection) Act 2012

 

Section 72 of the Privacy Act 1988 authorises the Australian Information Commissioner (the Commissioner) to make a determination that an act or practice of an agency or an organisation, that may constitute a breach of an Information Privacy Principle, a National Privacy Principle or an approved privacy code, shall be regarded as not breaching that principle or approved code for the purposes of the Privacy Act. A determination may only be made if the Commissioner is satisfied this is in the public interest. A determination made under section 72 is referred to as a Public Interest Determination.

The Privacy Amendment (Enhancing Privacy Protection) Act 2012 (the Privacy Amendment Act) significantly reforms the Privacy Act 1988. This includes amending the power to make a determination under section 72. Section 72, as amended, refers to a new set of Australian Privacy Principles (APPs) and to registered APP codes. This reflects other amendments made by the Privacy Amendment Act including the replacement of the Information Privacy Principles and the National Privacy Principles with a single set of APPs. The amendments to the Privacy Act commence on 12 March 2014 (the commencement date).

Item 12 in Schedule 6 of the Privacy Amendment Act contains the following savings provisions for public interest determinations in force prior to the commencement date:

  • This item applies to a determination if the determination was made under section 72 of the Privacy Act and the determination was in force immediately before the commencement date (subitem 12(1)).
  • An existing Public Interest Determination has effect after the commencement date as if it had been made under the amended Privacy Act (subitem 12(2)).
  • The Commissioner may, by legislative instrument, vary an existing Public Interest Determination after the commencement date to take into account amendments made by the Privacy Amendment Act (subitem 12(3)).
  • In deciding whether to vary a Public Interest Determination, the Commissioner may consult any person or entity, and take into account any matter that the Commissioner considers relevant (subitem 12(4)).

Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

The purpose and intended operation of this Determination is to:

  • Amend Public Interest Determination Numbers 3A, 5, 12 and 12A, to which subitem 12(1) in Schedule 6 of the Privacy Amendment Act applies. These public interest determinations permit certain acts and practices that may otherwise breach an Information Privacy Principle or National Privacy Principle, where the Commissioner is satisfied that the public interest in doing the act, or engaging in the practice, substantially outweighs the public interest in adhering to the principle. From commencement, the acts and practices covered by these determinations may breach equivalent APPs. The amendments made under item 12(3), Schedule 6, are intended to ensure that each determination operates in an identical fashion to the way it operated, as in force immediately before commencement.
  • Repeal Public Interest Determination Numbers 4, 7, 11, 11A, 13 and 13A, to which subitem 12(1) in Schedule 6 of the Privacy Amendment Act applies. These public interest determinations are no longer required. From the commencement date, the acts and practices covered by these determinations do not breach an APP because an exemption or exception to an APP applies. The Commissioner has the power to repeal these determinations under section 72 of the Privacy Act (by virtue of s 33(3) of the Acts Interpretation Act 1901).
  • Repeal Public Interest Determination No. 8, to which item 12(1) in Schedule 6 of the Privacy Amendment Act applies. The determination is no longer required as the act or practice covered by the determination is complete. The Commissioner has the power to repeal this determination under section 72 of the Privacy Act (by virtue of subsection 33(3) of the Acts Interpretation Act 1901).

This Determination is made by the Privacy Commissioner. Under subsection 12(1) of the Australian Information Commissioner Act 2010 (the AIC Act) the Privacy Commissioner has the privacy functions conferred on the Information Commissioner. Under subsection 9(1) of the AIC Act, the privacy functions are functions conferred on the Information Commissioner by an Act (or an instrument under an Act), if the functions relate to the privacy of an individual and are not freedom of information functions. The privacy functions include the power to make a public interest determination under section 72 of the Privacy Act.

Consultation Process

The Office of the Australian Information Commissioner gave notice to:

  • The Commonwealth Director of Public Prosecutions, the applicant for Public Interest Determination Numbers 3A and 8, of the proposed amendments to Public Interest Determination No. 3A, and the proposed repeal of Public Interest Determination No. 8.
  • The Australian Federal Police, the applicant for Public Interest Determination Numbers 4 and 5, of the proposed repeal of Public Interest Determination No. 4 and the proposed amendment of Public Interest Determination No. 5.
  • The Department of Foreign Affairs and Trade, the applicant for Public Interest Determination No. 7, of the proposed repeal of that determination.
  • Dr Elizabeth McCusker, the applicant for Public Interest Determination No. 11, of the proposed repeal of that determination and of the related Public Interest Determination No. 11A, as well as notifying the National Health and Medical Research Council of these matters.
  • Dr Steve Hambleton, President of the Australian Medical Association, the applicant for Public Interest Determination No. 12, of the proposed amendments to that determination, and to the related Public Interest Determination No. 12A.
  • Uniting Communities, the applicant for Public Interest Determination No. 13, of the proposed repeal of that determination and of the related Public Interest Determination No. 13A.

The effects of the Determination are of a minor or machinery nature and will not substantially alter existing arrangements. Therefore the Commissioner was satisfied that further consultation was unnecessary, in accordance with paragraph 18(2)(a) of the Legislative Instruments Act 2003.

Statement of Compatibility with Human Rights

This Statement of Compatibility with Human Rights has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in s 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Determination

The purpose of the Determination is to:

  • Amend Public Interest Determination Numbers 3A, 5, 12 and 12A, which were made by the Commissioner under section 72 of the Privacy Act.
  • Repeal Public Interest Determination Numbers 4, 7, 8, 11, 11A, 13 and 13A , which were made by the Commissioner under section 72 of the Privacy Act.     

Human rights implications

The Determination engages article 17 of the International Covenant on Civil and Political Rights (ICCPR), which provides that ‘no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation’, and that ‘everyone has the right to the protection of the law against such interference and attacks.’

The APPs make provision for the protection of the privacy of individuals, consistent with article 17 of the ICCPR.

Under section 72 of the Privacy Act, the Privacy Commissioner made a number of Public Interest Determinations to permit certain agencies and organisations to do an act, or engage in a practice, that would otherwise breach the requirements of the former Information Privacy Principles or National Privacy Principles. In making these determinations, the Commissioner was satisfied that the public interest in the agency or organisation doing the act, or engaging in the practice, outweighs to a substantial degree the public interest in adhering to that principle.

The Determination amends certain Public Interest Determinations to ensure that the determinations continue to operate in an identical fashion after the commencement of the Privacy Amendment Act. That is, the amended determinations permit the same acts and practices permitted prior to commencement of the Privacy Amendment Act. The amendments do not limit the right to privacy in article 17 of the ICCPR any further than it was already limited immediately prior to commencement of the Privacy Amendment Act.  

The Determination also repeals certain Public Interest Determinations that are no longer necessary from the commencement of the Privacy Amendment Act. The acts and practices are either permitted under changes made to the Privacy Act by the Privacy Amendment Act, or are complete. The repeals will not result in any limitation of the right to privacy in article 17 of the ICCPR.

Conclusion

The Determination is compatible with human rights because, while it engages article 17 of the ICCPR, it does not result in any additional limitation of those rights.

 

 

Overview

The Privacy Public Interest (Enhancing Privacy Protection) Amendment and Repeal Determination 2014, enacted under the authority of the Australian Information Commissioner, was introduced to align with the significant reforms brought about by the Privacy Amendment (Enhancing Privacy Protection) Act 2012, which sought to enhance privacy protection across the nation. The Privacy Act 1988, as amended by the Privacy Amendment Act, introduced a new set of Australian Privacy Principles (APPs) to replace the former Information Privacy Principles and National Privacy Principles. This legislative instrument aims to ensure that existing Public Interest Determinations made under section 72 of the Privacy Act continue to operate effectively post-amendment, without further limiting individuals' right to privacy as protected under article 17 of the International Covenant on Civil and Political Rights. The determination amends certain determinations to maintain their prior operational scope and repeals others that are rendered unnecessary by the reforms. The process involved consultation with relevant stakeholders, although the Commissioner deemed further consultation unnecessary given the minor nature of the effects.

Scope and Application

The Privacy Public Interest (Enhancing Privacy Protection) Amendment and Repeal Determination 2014 applies to agencies and organisations whose acts or practices may constitute a breach of the Australian Privacy Principles (APPs) under the Privacy Act 1988, as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012. This determination is concerned with specific Public Interest Determinations (PIDs) that permit certain practices that might otherwise breach privacy principles where the public interest justifies such actions. These PIDs are numbered 3A, 5, 12, 12A, 4, 7, 8, 11, 11A, 13, and 13A. The Determination modifies existing PIDs to ensure they continue to operate under the new APPs framework, and repeals PIDs that are no longer necessary, either because the activities they cover are now permitted under the new APPs or because the activities have been completed. This Determination operates at the Commonwealth level and applies to all entities subject to the Privacy Act, including organisations operating within Australia and Australian organisations operating overseas. The Commissioner can vary existing PIDs post-commencement to align with the new APPs, and may consult with relevant parties in making these variations. The scope of the Determination is further extended by subordinate instruments, which may include regulations or other legislative instruments, to allow for detailed and specific application in various contexts.

Key Provisions

The Privacy Public Interest (Enhancing Privacy Protection) Amendment and Repeal Determination 2014 (the Determination) amends and repeals various Public Interest Determinations (PIDs) made under the Privacy Act 1988 (the Act). The primary objective of these amendments and repeals is to align the PIDs with the new Australian Privacy Principles (APPs) introduced by the Privacy Amendment (Enhancing Privacy Protection) Act 2012, which commenced on 12 March 2014. Section 72 of the Privacy Act authorises the Australian Information Commissioner to make a PID if they are satisfied that a particular act or practice is in the public interest, despite potentially breaching an Information Privacy Principle, a National Privacy Principle, or an approved privacy code. The Determination amends PID Nos. 3A, 5, 12, and 12A to ensure that they continue to operate in the same manner as they did prior to the commencement of the Privacy Amendment Act. These amendments allow certain acts and practices that might otherwise breach the APPs, provided that the public interest in performing these acts or practices substantially outweighs the public interest in adhering to the principles. The Determination also repeals PID Nos. 4, 7, 8, 11, 11A, 13, and 13A. The repeals are effective because the acts and practices previously permitted under these PIDs are now covered by exemptions or exceptions in the APPs or because the acts or practices are now complete. The repeals ensure that these acts and practices do not breach the APPs from the commencement date of the Privacy Amendment Act. The Commissioner has the power to amend and repeal these PIDs under section 72 of the Privacy Act, by virtue of section 33(3) of the Acts Interpretation Act 1901. Entities and individuals subject to these PIDs must ensure compliance with the amended PIDs to continue engaging in the permitted acts and practices without breaching the APPs. These entities and individuals must also be aware of the repeals and ensure that the previously permitted acts and practices are now compliant with the APPs or have been completed. The Commissioner retains the authority to consult with relevant parties and consider any matter deemed relevant when deciding whether to vary an existing PID. There are no specific offences, penalties, or civil or criminal consequences outlined in the Determination itself. However, any breach of the APPs, which the PIDs seek to permit under certain conditions, may result in enforcement actions by the Office of the Australian Information Commissioner, including the imposition of financial penalties. The maximum penalty for serious or repeated APP breaches can be up to $2.1 million for corporations and $210,000 for individuals, as stipulated in the Privacy Act. Additionally, non-compliance with the APPs may lead to legal proceedings, adverse publicity, and damage to reputation, which could have significant consequences for the entities and individuals involved.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.