Privacy 

Fair Trading and the NSW Privacy Law

There are a set of binding privacy standards for the NSW public sector, known as information protection principles, that regulate the way public sector agencies collect, use, store and disclose personal information. These standards are set out in the Privacy and Personal Information Protection Act 1998 (PPIP Act).

Information Protection Principles

In summary, the Information Protection Principles are:

Collection

• Personal information is to be collected for a lawful purpose directly related to Fair Trading’s functions.
• Personal information is to be collected directly from the individual concerned, unless they authorise otherwise.
• The individual is to be told why the information is being collected, who will get it, whether supply is mandatory or voluntary and their right to access and correct it.
• Personal information collected is to be relevant and not to intrude to an unreasonable extent on the personal affairs of the individual.

Storage

Information is to be kept no longer than necessary and disposed of appropriately, protected by reasonable security safeguards and protected from unauthorised use or disclosure.

Access

• Individuals are to be provided with sufficient information about Fair Trading’s holdings of personal information to enable them to exercise their rights to access and correct information about themselves.
• Fair Trading is to give individuals access to personal information about themselves without unreasonable delay and expense.
• Fair Trading is to comply with individuals’ requests to amend their personal information to ensure that it is relevant, up to date, complete and not misleading.

Use

• Fair Trading is to take reasonable steps to ensure the accuracy of personal information before using it.
• Fair Trading is to use personal information only for the purpose for which it was collected or a directly related purpose, for a purpose to which the individual has consented, or where its use is necessary to prevent or lessen a threat to someone’s life or health.

Disclosure

• Fair Trading is to disclose personal information only for a purpose directly related to the purpose of collection and where the individual is unlikely to object, or where the individual has been put on notice that information is usually disclosed in this way, or where the disclosure is necessary to prevent or lessen a threat to someone’s life or health.
• Fair Trading is to observe special restrictions by:
  • not disclosing personal information about a person’s ethnic or racial origin, political opinions, religious or philosophical beliefs, trade union membership, health or sexual activities unless disclosure is necessary to prevent or lessen a threat to life or health, and
  • only disclosing information to individuals or organisations outside New South Wales under approved circumstances.

What exemptions apply?

In certain circumstances NSW Fair Trading does not have to comply with one or more of the Information Protection Principles.

Generally, Fair Trading does not have to comply with certain Information Protection Principles where this would prevent Fair Trading from carrying out its proper functions, such as law enforcement, investigation of suspected illegal conduct and dealing with consumer complaints.

Public registers

The Privacy and Personal Information Protection Act also regulates the operation of public registers maintained by Fair Trading. The Act requires Fair Trading to:

• only provide information from those registers if it is satisfied that the information will be used for a purpose which is in accordance with the purpose of the register, and
• provide people with an opportunity to have their personal details held on the register suppressed in exceptional circumstances where the safety or well-being of the person is at risk.

Access to personal information

Under the information protection principles outlined above, Fair Trading is required to provide people with sufficient information about Fair Trading’s holdings of personal information to enable them to exercise their rights to access and correct information about themselves, and to give people access to personal information about themselves without unreasonable delay and expense.

If you wish to have access to personal information which Fair Trading holds about you, you can fill out a Privacy/Freedom of Information Request for Access form, available from Fair Trading. Fair Trading does not have to permit access to personal information if it would compromise Fair Trading’s investigative or law enforcement activities.

Alteration of personal information

If Fair Trading holds personal information about you, you are entitled to ask Fair Trading to alter the information in order to ensure it is accurate. Fair Trading generally requires requests for alteration of personal information to be in writing. 

Fair Trading does not have to alter personal information if it would compromise Fair Trading’s investigative or law enforcement activities.

Privacy complaints about the conduct of NSW Fair Trading

If you are unhappy with the way Fair Trading has dealt with your personal information, you can make a complaint. The complaint should be in writing, addressed to NSW Fair Trading, specify a return address within Australia, and be lodged with Fair Trading within 6 months of the time when you first became aware of the conduct you are complaining about.

If the complaint concerns a possible breach of the Privacy and Personal Information Protection Act or a Privacy Code of Practice, Fair Trading is required to review the conduct complained about. Depending on the review outcome, the Act provides that Fair Trading may:

• take no further action
• apologise
• offer a remedy such as compensation
• promise that the behaviour will not occur again or
• change its operations to make sure the behaviour will not occur again.

If you are not satisfied with the outcome of the review you can apply to the Administrative Decisions Tribunal for a further review of the conduct. The Tribunal has the power to make any orders that it thinks necessary, including the power to award damages of up to $40,000.

Privacy complaints about other persons or bodies

Privacy complaints can also be directed to Privacy NSW, which is the office of the NSW Privacy Commissioner. The Commissioner has powers to conduct research and investigations, provide advice and education, and handle complaints about privacy breaches. The Commissioner does not have power to make orders or to award compensation but will conciliate complaints by assisting parties to reach a decision that all, including the Commissioner, are happy with.

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