Privacy Issues and Management Rights

05 January 09

We often hear of complaints being made to on-site managers of a breach of privacy when people don’t agree with the way their personal details are being used. This article briefly explores the basis for such claims by owners and guests alike.


In Australia there are no common law rights to privacy, so we need to look to the legislation in the area.


In New South Wales the Privacy and Personal Information Protection Act 1998 (PPIP Act) governs management of personal information by public sector agencies such as government departments and authorities. The NSW Office of the Privacy Commissioner is also established by the PPIP Act. The Commissioner has the power to investigate and conciliate privacy breaches by private organisations and individuals.


The Commonwealth legislation, the Privacy Act 1988 (Privacy Act) establishes 10 National Privacy Principles (NPPs) that apply to private sector organisations. Small businesses are excluded from the term ‘organisation’.


Small business is defined in the Privacy Act as a business that had a turnover of less than $3,000,000 for the previous financial year. Most Management Rights operators would be exempted from complying with the Privacy Act based on this definition. However the regulations prescribe that a small business that operates a residential tenancy database is included in the term ‘organisation’ and accordingly is required to comply with the 10 NPPs.


A ‘residential tenancy database’ is defined as a database that:
(a) stores personal information in relation to an individual’s occupation of residential premises as a tenant; and
(b) can be accessed by a person other than the operator of the database or a person acting for the operator.


Personal Information is defined as information or an opinion (including part of a database) whether true or not and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained from the information or opinion.


Keeping a residential tenancy database is pretty standard in the industry and you should carefully consider who has access to your database to determine whether you must legally comply with the 10 NPPs.


There is also the provision for small business operators to ‘opt in’ to the Privacy Act. The benefits in doing so include increased customer confidence. You should be fully versed in all the obligations of the Privacy Act before electing to opt it however.


The 10 NPPs are set out in Schedule 3 of the Privacy Act and cover the following areas:
1. Collection – restrictions in obtaining personal information;
2. Use and disclosure – restrictions on how personal information may be used and disclosed to others;
3. Data Quality – ensuring personal information is accurate, complete and up to date;
4. Data security – protection of personal information from misuse, loss, unauthorised access, modification or disclosure and destruction or de-indentifying personal information no longer required;
5. Openness – maintaining clear policies on management of personal information and letting people know what sort of personal information is held about them, how it is collected, held, used and disclosed;
6. Access and correction – providing people with access to the personal information held about them upon request except in limited circumstances;
7. Identifiers – an organisation must not use someone else’s identifier as its own identifier (e.g. Centrelink number or tax file number);
8. Anonymity – where it is lawful and practical, individuals must have the option of not identifying themselves when entering transactions with the organisation;
9. Transborder data flows – personal information may only be transferred to someone in a foreign country in restricted circumstances;
10. Sensitive Information – may only be collected with consent or in certain restricted circumstances. Sensitive information is information or an opinion about an individual’s racial or ethnic origin, political opinions, membership of political associations, professional or trade associations or trade unions, religious beliefs or affiliations, philosophical beliefs, sexual practices or preferences or criminal record that is also personal information.

 

An act or practice breaches a NPP if and only if it is contrary to or inconsistent with that NPP. The Commissioner may investigate any complaints that there has been a breach of the NPPs and following the investigation may make a range of declarations, including that the offender pay compensation and take action to redress any loss or damage suffered by the complainant.

 

You should also consider the following:
• the Do Not Call Register Act 2006 restricts ‘telemarketing’ throughout Australia and is relevant when marketing to prospective guests;
• Companies that operate Management Rights businesses are also governed by the Corporations Act 2001, which prohibits the company from making unsolicited approaches to owners to join the on-site letting scheme.
  

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Fax:+ 61 7 5528 0955
Email:info@smh.net.au
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