Western Australia moves slowly to have a Privacy Act
September 3, 2024
Western Australia is slowly moving towards having a Privacy Act. The Privacy and Responsible Information Sharing Bill 2024 has passed the Legislative Assembly and is working its way through the Legislative Council. It is principles based legislation. It is modeled broadly on the Victorian/New South Wales/Queensland legislation. Its complaint and enforcement provisions are, like the other State Acts, quite process orientated and generally weak. It has a significant weakness in dealing with complaints which are not resolved by conciliation. Under the legislation a complaint is determined by the Information Commissioner (section 104). However the Commission is involved in the mandatory attempt at conciliation of a complaint. A party should have a complaint heard by an independent judicial or quasi judicial body. Preferably a court. Tribunals have a poor record in considering privacy complaints. The jurisprudence by the Victorian Civil and Administrative Tribunal has been so ineffective as to render the enforcement provisions in Victoria dead letter.
There will be 11 Information Privacy Principles (“IPPs”) will apply to IPP Entities which will include WA public entities, its contracted service providers WA Government trading enterprises and departments, local and regional governments.
Most of the IPPs follow the same structure as the Commonwealth APPs and State IPPs. A new development is aprinciples involving the Automated Decision Making. The weakness of the IPPs are that they are replete with exceptions, being drafted in general terms and with vague terminonology (such as what is reasonable). That has tended to be interpreted by Courts, Tribunals and Commissioners in favour of the entities. As such the protections are not as effective as appears on paper.
Some of the key IPPs are:
IPP 1: Collection
Collection must be “necessary” for one or more of the IPP Entity’s functions or activities. Personal information must be collected in a “fair and reasonable”, Read the rest of this entry »