ACT enactment has the same meaning as enactment has in the Australian Capital Territory (Self-Government) Act 1988.
agency means:
(a) a Minister; or
(b) a Department; or
(c) a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a Commonwealth enactment, not being:
(i) an incorporated company, society or association; or
(ii) an organisation within the meaning of the Conciliation and Arbitration Act 1904 or a branch of such an organisation; or
(d) a body established or appointed by the Governor-General, or by a Minister, otherwise than by or under a Commonwealth enactment; or
(e) a person holding or performing the duties of an office established by or under, or an appointment made under, a Commonwealth enactment, other than a person who, by virtue of holding that office, is the Secretary of a Department; or
(f) a person holding or performing the duties of an appointment, being an appointment made by the Governor-General, or by a Minister, otherwise than under a Commonwealth enactment; or
(g) a federal court; or
(h) the Australian Federal Police; or
(i) an eligible case manager; or
(j) the nominated AGHS company; or
(k) an eligible hearing service provider.
annual turnover of a business has the meaning given by section 6DA.
approved privacy code means:
(a) a privacy code approved by the Commissioner under section 18BB; or
(b) a privacy code approved by the Commissioner under section 18BB with variations approved by the Commissioner under section 18BD.
bank means:
(a) the Reserve Bank of Australia; or
(b) a body corporate that is an ADI (authorised deposit-taking institution) for the purposes of the Banking Act 1959; or
(c) a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution.
breach an approved privacy code has the meaning given by section 6B.
breach an Information Privacy Principle has a meaning affected by subsection 6(2).
breach a National Privacy Principle has the meaning given by section 6A.
class member, in relation to a representative complaint, means any of the persons on whose behalf the complaint was lodged, but does not include a person who has withdrawn under section 38B.
code complaint means a complaint about an act or practice that, if established, would be an interference with the privacy of the complainant because it breached an approved privacy code.
Code of Conduct means the Code of Conduct issued under section 18A.
commercial credit means a loan sought or obtained by a person, other than a loan of a kind referred to in the definition of credit in this subsection.
Commissioner means the Privacy Commissioner.
Commissioner of Police means the Commissioner of Police appointed under the Australian Federal Police Act 1979.
Commonwealth contract means a contract, to which the Commonwealth or an agency is or was a party, under which services are to be, or were to be, provided to an agency.
Note: See also subsection (9) about provision of services to an agency.
Commonwealth enactment means:
(a) an Act other than:
(i) the Northern Territory (Self-Government) Act 1978; or
(ii) an Act providing for the administration or government of an external Territory; or
(iii) the Australian Capital Territory (Self-Government) Act 1988;
(b) an Ordinance of the Australian Capital Territory;
(c) an instrument (including rules, regulations or by-laws) made under an Act to which paragraph (a) applies or under an Ordinance to which paragraph (b) applies; or
(d) any other legislation that applies as a law of the Commonwealth (other than legislation in so far as it is applied by an Act referred to in subparagraph (a)(i) or (ii)) or as a law of the Australian Capital Territory, to the extent that it operates as such a law.
Commonwealth officer means a person who holds office under, or is employed by, the Commonwealth, and includes:
(a) a person appointed or engaged under the Public Service Act 1999;
(b) a person (other than a person referred to in paragraph (a)) permanently or temporarily employed by, or in the service of, an agency;
(c) a member of the Defence Force; and
(d) a member, staff member or special member of the Australian Federal Police;
but does not include a person permanently or temporarily employed in the Australian Capital Territory Government Service or in the Public Service of the Northern Territory or of Norfolk Island.
consent means express consent or implied consent.
contracted service provider, for a government contract, means:
(a) an organisation that is or was a party to the government contract and that is or was responsible for the provision of services to an agency or a State or Territory authority under the government contract; or
(b) a subcontractor for the government contract.
corporation means a body corporate that:
(a) is a foreign corporation;
(b) is a trading corporation formed within the limits of Australia or is a financial corporation so formed; or
(c) is incorporated in a Territory, other than the Northern Territory.
credit means a loan sought or obtained by an individual from a credit provider in the course of the credit provider carrying on a business or undertaking as a credit provider, being a loan that is intended to be used wholly or primarily for domestic, family or household purposes.
credit card means any article of a kind commonly known as a credit card, charge card or any similar article intended for use in obtaining cash, goods or services by means of loans, and includes any article of a kind commonly issued by persons carrying on business to customers or prospective customers of those persons for use in obtaining goods or services from those persons by means of loans.
credit enhancement, in relation to a loan, means:
(a) the process of insuring risk associated with purchasing or funding the loan by means of a securitisation arrangement; or
(b) any other similar process related to purchasing or funding the loan by those means.
credit information file, in relation to an individual, means any record that contains information relating to the individual and is kept by a credit reporting agency in the course of carrying on a credit reporting business (whether or not the record is a copy of the whole or part of, or was prepared using, a record kept by another credit reporting agency or any other person).
credit provider has the meaning given by section 11B, and, for the purposes of sections 7 and 8 and Parts III, IV and V, is taken to include a mortgage insurer and a trade insurer.
credit report means any record or information, whether in a written, oral or other form, that:
(a) is being or has been prepared by a credit reporting agency; and
(b) has any bearing on an individual's:
(i) eligibility to be provided with credit; or
(ii) history in relation to credit; or
(iii) capacity to repay credit; and
(c) is used, has been used or has the capacity to be used for the purpose of serving as a factor in establishing an individual's eligibility for credit.
credit reporting agency has the meaning given by section 11A.
credit reporting business means a business or undertaking (other than a business or undertaking of a kind in respect of which regulations made for the purposes of subsection (5C) are in force) that involves the preparation or maintenance of records containing personal information relating to individuals (other than records in which the only personal information relating to individuals is publicly available information), for the purpose of, or for purposes that include as the dominant purpose the purpose of, providing to other persons (whether for profit or reward or otherwise) information on an individual's:
(a) eligibility to be provided with credit; or
(b) history in relation to credit; or
(c) capacity to repay credit;
whether or not the information is provided or intended to be provided for the purposes of assessing applications for credit.
credit reporting complaint means a complaint about an act or practice that, if established, would be an interference with the privacy of the complainant because:
(a) it breached the Code of Conduct; or
(b) it breached a provision of Part IIIA.
credit reporting infringement means:
(a) a breach of the Code of Conduct; or
(b) a breach of a provision of Part IIIA.
current credit provider, in relation to an individual, means a credit provider who has given, to the individual, credit that has not yet been fully repaid or otherwise fully discharged.
Defence Force includes the Naval Reserve Cadets, the Australian Cadet Corps and the Air Training Corps.
Department means an Agency within the meaning of the Public Service Act 1999.
eligible case manager means an entity (within the meaning of the Employment Services Act 1994):
(a) that is, or has at any time been, a contracted case manager within the meaning of that Act; and
(b) that is not covered by paragraph (a), (b), (c), (d), (e), (f), (g) or (h) of the definition of agency.
eligible communications service means a postal, telegraphic, telephonic or other like service, within the meaning of paragraph 51(v) of the Constitution.
eligible hearing service provider means an entity (within the meaning of the Hearing Services Administration Act 1997):
(a) that is, or has at any time been, engaged under Part 3 of the Hearing Services Administration Act 1997 to provide hearing services; and
(b) that is not covered by paragraph (a), (b), (c), (d), (e), (f), (g), (h) or (j) of the definition of agency.
employee record, in relation to an employee, means a record of personal information relating to the employment of the employee. Examples of personal information relating to the employment of the employee are health information about the employee and personal information about all or any of the following:
(a) the engagement, training, disciplining or resignation of the employee;
(b) the termination of the employment of the employee;
(c) the terms and conditions of employment of the employee;
(d) the employee's personal and emergency contact details;
(e) the employee's performance or conduct;
(f) the employee's hours of employment;
(g) the employee's salary or wages;
(h) the employee's membership of a professional or trade association;
(i) the employee's trade union membership;
(j) the employee's recreation, long service, sick, personal, maternity, paternity or other leave;
(k) the employee's taxation, banking or superannuation affairs.
enforcement body means:
(a) the Australian Federal Police; or
(b) the National Crime Authority; or
(c) the Australian Customs Service; or
(d) the Australian Prudential Regulation Authority; or
(e) the Australian Securities and Investments Commission; or
(f) another agency, to the extent that it is responsible for administering, or performing a function under, a law that imposes a penalty or sanction or a prescribed law; or
(g) another agency, to the extent that it is responsible for administering a law relating to the protection of the public revenue; or
(h) a police force or service of a State or a Territory; or
(i) the New South Wales Crime Commission; or
(j) the Independent Commission Against Corruption of New South Wales; or
(k) the Police Integrity Commission of New South Wales; or
(l) the Criminal Justice Commission of Queensland; or
(m) another prescribed authority or body that is established under a law of a State or Territory to conduct criminal investigations or inquiries; or
(n) a State or Territory authority, to the extent that it is responsible for administering, or performing a function under, a law that imposes a penalty or sanction or a prescribed law; or
(o) a State or Territory authority, to the extent that it is responsible for administering a law relating to the protection of the public revenue.
Federal Court means the Federal Court of Australia.
file number complaint means a complaint about an act or practice that, if established, would be an interference with the privacy of the complainant:
(a) because it breached a guideline issued under section 17; or
(b) because it involved an unauthorised requirement or request for disclosure of a tax file number.
financial corporation means a financial corporation within the meaning of paragraph 51(xx) of the Constitution.
foreign corporation means a foreign corporation within the meaning of paragraph 51(xx) of the Constitution.
Freedom of Information Act means the Freedom of Information Act 1982.
generally available publication means a magazine, book, newspaper or other publication (however published) that is or will be generally available to members of the public.
government contract means a Commonwealth contract or a State contract.
guarantee includes an indemnity given against the default of a borrower in making a payment in respect of a loan.
health information means:
(a) information or an opinion about:
(i) the health or a disability (at any time) of an individual; or
(ii) an individual's expressed wishes about the future provision of health services to him or her; or
(iii) a health service provided, or to be provided, to an individual;
that is also personal information; or
(b) other personal information collected to provide, or in providing, a health service; or
(c) other personal information about an individual collected in connection with the donation, or intended donation, by the individual of his or her body parts, organs or body substances.
health service means:
(a) an activity performed in relation to an individual that is intended or claimed (expressly or otherwise) by the individual or the person performing it:
(i) to assess, record, maintain or improve the individual's health; or
(ii) to diagnose the individual's illness or disability; or
(iii) to treat the individual's illness or disability or suspected illness or disability; or
(b) the dispensing on prescription of a drug or medicinal preparation by a pharmacist.
hearing services has the same meaning as in the Hearing Services Administration Act 1997.
individual means a natural person.
individual concerned, in relation to personal information or a record of personal information, means the individual to whom the information relates.
Information Privacy Principle means any of the Information Privacy Principles set out in section 14.
intelligence agency means:
(a) the Australian Security Intelligence Organisation;
(b) the Australian Secret Intelligence Service; or
(c) the Office of National Assessments.
IPP complaint means a complaint about an act or practice that, if established, would be an interference with the privacy of the complainant because it breached an Information Privacy Principle.
loan means a contract, arrangement or understanding under which a person is permitted to defer payment of a debt, or to incur a debt and defer its payment, and includes:
(a) a hire-purchase agreement; and
(b) such a contract, arrangement or understanding for the hire, lease or renting of goods or services, other than a contract, arrangement or understanding under which:
(i) full payment is made before, or at the same time as, the goods or services are provided; and
(ii) in the case of a hiring, leasing or renting of goods--an amount greater than or equal to the value of the goods is paid as a deposit for the return of the goods.
media organisation means an organisation whose activities consist of or include the collection, preparation for dissemination or dissemination of the following material for the purpose of making it available to the public:
(a) material having the character of news, current affairs, information or a documentary;
(b) material consisting of commentary or opinion on, or analysis of, news, current affairs, information or a documentary.
medical research includes epidemiological research.
mortgage credit means credit provided in connection with the acquisition, maintenance or improvement of real property, being credit in respect of which the real property is security.
mortgage insurer means a corporation that carries on a business or undertaking (whether for profit, reward or otherwise) that involves providing insurance to credit providers in respect of mortgage credit given by credit providers to other persons.
National Privacy Principle means a clause of Schedule 3. A reference in this Act to a National Privacy Principle by number is a reference to the clause of Schedule 3 with that number.
nominated AGHS company means a company that:
(a) is the nominated company (within the meaning of Part 2 of the Hearing Services and AGHS Reform Act 1997); and
(b) is either:
(i) Commonwealth-owned (within the meaning of that Part); or
(ii) a corporation.
NPP complaint means a complaint about an act or practice that, if established, would be an interference with the privacy of the complainant because it breached a National Privacy Principle.
Ombudsman means the Commonwealth Ombudsman.
organisation has the meaning given by section 6C.
personal information means information or an opinion (including information or an opinion forming 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.
principal executive, of an agency, has a meaning affected by section 37.
privacy code means a written code regulating acts and practices that affect privacy.
record means:
(a) a document; or
(b) a database (however kept); or
(c) a photograph or other pictorial representation of a person;
but does not include:
(d) a generally available publication; or
(e) anything kept in a library, art gallery or museum for the purposes of reference, study or exhibition; or
(f) Commonwealth records as defined by subsection 3(1) of the Archives Act 1983 that are in the open access period for the purposes of that Act; or
(fa) records (as defined in the Archives Act 1983) in the custody of the Archives (as defined in that Act) in relation to which the Archives has entered into arrangements with a person other than a Commonwealth institution (as defined in that Act) providing for the extent to which the Archives or other persons are to have access to the records; or
(g) documents placed by or on behalf of a person (other than an agency) in the memorial collection within the meaning of the Australian War Memorial Act 1980; or
(h) letters or other articles in the course of transmission by post.
registered political party means a political party registered under Part XI of the Commonwealth Electoral Act 1918.
representative complaint means a complaint where the persons on whose behalf the complaint was made include persons other than the complainant, but does not include a complaint that the Commissioner has determined should no longer be continued as a representative complaint.
Secretary means an Agency Head within the meaning of the Public Service Act 1999.
securitisation arrangement means an arrangement:
(a) involving the funding, or proposed funding, of:
(i) loans that have been, or are to be, provided by a credit provider; or
(ii) the purchase of loans by a credit provider;
by issuing instruments or entitlements to investors; and
(b) under which payments to investors in respect of such instruments or entitlements are principally derived, directly or indirectly, from such loans.
sensitive information means:
(a) information or an opinion about an individual's:
(i) racial or ethnic origin; or
(ii) political opinions; or
(iii) membership of a political association; or
(iv) religious beliefs or affiliations; or
(v) philosophical beliefs; or
(vi) membership of a professional or trade association; or
(vii) membership of a trade union; or
(viii) sexual preferences or practices; or
(ix) criminal record;
that is also personal information; or
(b) health information about an individual.
serious credit infringement means an act done by a person:
(a) that involves fraudulently obtaining credit, or attempting fraudulently to obtain credit; or
(b) that involves fraudulently evading the person's obligations in relation to credit, or attempting fraudulently to evade those obligations; or
(c) that a reasonable person would consider indicates an intention, on the part of the first-mentioned person, no longer to comply with the first-mentioned person's obligations in relation to credit.
small business has the meaning given by section 6D.
small business operator has the meaning given by section 6D.
solicit, in relation to personal information, means request a person to provide that information, or a kind of information in which that information is included.
staff of the Ombudsman means the persons appointed or employed for the purposes of section 31 of the Ombudsman Act 1976.
State includes the Australian Capital Territory and the Northern Territory.
State contract means a contract, to which a State or Territory or State or Territory authority is or was a party, under which services are to be, or were to be, provided to a State or Territory authority.
Note: See also subsection (9) about provision of services to a State or Territory authority.
State or Territory authority has the meaning given by section 6C.
subcontractor, for a government contract, means an organisation:
(a) that is or was a party to a contract (the subcontract):
(i) with a contracted service provider for the government contract (within the meaning of paragraph (a) of the definition of contracted service provider); or
(ii) with a subcontractor for the government contract (under a previous application of this definition); and
(b) that is or was responsible under the subcontract for the provision of services to an agency or a State or Territory authority, or to a contracted service provider for the government contract, for the purposes (whether direct or indirect) of the government contract.
tax file number means a tax file number as defined in Part VA of the Income Tax Assessment Act 1936.
tax file number information means information (including information forming part of a database), whether compiled lawfully or unlawfully, and whether recorded in a material form or not, that records the tax file number of a person in a manner connecting it with the person's identity.
temporary public interest determination means a determination made under section 80A.
trade insurer means a corporation that carries on a business or undertaking (whether for profit, reward or otherwise) that involves providing insurance to credit providers in respect of commercial credit given by credit providers to other persons.
trading corporation means a trading corporation within the meaning of paragraph 51(xx) of the Constitution.
use, in relation to information, does not include mere disclosure of the information, but does include the inclusion of the information in a publication.
(1A) In order to avoid doubt, it is declared that an ACT enactment is not a Commonwealth enactment for the purposes of this Act.
(2) For the purposes of this Act, an act or practice breaches an Information Privacy Principle if, and only if, it is contrary to, or inconsistent with, that Information Privacy Principle.
(3) For the purposes of this Act, an act or practice breaches a guideline issued under section 17 if, and only if, it is contrary to, or inconsistent with, the guideline.
(3A) For the purposes of this Act, an act or practice breaches the Code of Conduct if, and only if, it is contrary to, or inconsistent with, the Code of Conduct.
(4) The definition of individual in subsection (1) shall not be taken to imply that references to persons do not include persons other than natural persons.
(5) For the purposes of this Act, a person shall not be taken to be an agency merely because the person is the holder of, or performs the duties of:
(a) a prescribed office;
(b) an office prescribed by regulations made for the purposes of subparagraph 4(3)(b)(i) of the Freedom of Information Act 1982;
(c) an office established by or under a Commonwealth enactment for the purposes of an agency;
(d) a judicial office or of an office of magistrate; or
(e) an office of member of a tribunal that is established by or under a law of the Commonwealth and that is prescribed for the purposes of this paragraph.
(5A) For the purposes of the definition of credit reporting business in subsection (1), information concerning commercial transactions engaged in by or on behalf of an individual is not to be taken to be information relating to an individual's:
(a) eligibility to be provided with credit; or
(b) history in relation to credit; or
(c) capacity to repay credit.
(5B) In considering whether a business or undertaking, carried on by a credit provider that is a corporation, is a credit reporting business within the meaning of this Act, the provision of information by the credit provider to corporations related to it is to be disregarded.
(5C) The regulations may provide that businesses or undertakings of a specified kind are not credit reporting businesses within the meaning of this Act.
(5D) A reference in this Act to the purchase of a loan includes a reference to the purchase of rights to receive payments under the loan.
(6) For the purposes of this Act, the Department of Defence shall be taken to include the Defence Force.
(7) Nothing in this Act prevents a complaint from:
(a) being both a file number complaint and an IPP complaint; or
(b) being both a file number complaint and a credit reporting complaint; or
(c) being both a file number complaint and a code complaint; or
(d) being both a file number complaint and an NPP complaint; or
(e) being both a code complaint and a credit reporting complaint; or
(f) being both an NPP complaint and a credit reporting complaint.
(8) For the purposes of this Act, the question whether bodies corporate are related to each other is determined in the manner in which that question is determined under the Corporations Law.
(9) To avoid doubt, for the purposes of this Act, services provided to an agency or a State or Territory authority include services that consist of the provision of services to other persons in connection with the performance of the functions of the agency or State or Territory authority.
(1) For the purposes of this Act, an act or practice breaches a National Privacy Principle if, and only if, it is contrary to, or inconsistent with, that National Privacy Principle.
No breach--contracted service provider
(2) An act or practice does not breach a National Privacy Principle if:
(a) the act is done, or the practice is engaged in:
(i) by an organisation that is a contracted service provider for a Commonwealth contract (whether or not the organisation is a party to the contract); and
(ii) for the purposes of meeting (directly or indirectly) an obligation under the contract; and
(b) the act or practice is authorised by a provision of the contract that is inconsistent with the Principle.
No breach--disclosure to the Archives
(3) An act or practice does not breach a National Privacy Principle if the act or practice involves the disclosure by an organisation of personal information in a record (as defined in the Archives Act 1983) solely for the purposes of enabling the Archives (as defined in that Act) to decide whether to accept, or to arrange, custody of the record.
No breach--act or practice outside Australia
(4) An act or practice does not breach a National Privacy Principle if:
(a) the act is done, or the practice is engaged in, outside Australia and the external Territories; and
(b) the act or practice is required by an applicable law of a foreign country.
Effect despite subsection (1)
(5) Subsections (2), (3) and (4) have effect despite subsection (1).
(1) For the purposes of this Act, an act or practice breaches an approved privacy code if, and only if, it is contrary to, or inconsistent with, the code.
No breach--contracted service provider
(2) An act or practice does not breach an approved privacy code if:
(a) the act is done, or the practice is engaged in:
(i) by an organisation that is a contracted service provider for a Commonwealth contract (whether or not the organisation is a party to the contract); and
(ii) for the purposes of meeting (directly or indirectly) an obligation under the contract; and
(b) the act or practice is authorised by a provision of the contract that is inconsistent with the code.
No breach--disclosure to the Archives
(3) An act or practice does not breach an approved privacy code if the act or practice involves the disclosure by an organisation of personal information in a record (as defined in the Archives Act 1983) solely for the purposes of enabling the Archives (as defined in that Act) to decide whether to accept, or to arrange, custody of the record.
No breach--act or practice outside Australia
(4) An act or practice does not breach an approved privacy code if:
(a) the act is done, or the practice is engaged in, outside Australia and the external Territories; and
(b) the act or practice is required by an applicable law of a foreign country.
Effect despite subsection (1)
(5) Subsections (2), (3) and (4) have effect despite subsection (1).
(1) In this Act:
organisation means:
(a) an individual; or
(b) a body corporate; or
(c) a partnership; or
(d) any other unincorporated association; or
(e) a trust;
that is not a small business operator, a registered political party, an agency, a State or Territory authority or a prescribed instrumentality of a State or Territory.
Note: Regulations may prescribe an instrumentality by reference to one or more classes of instrumentality. See subsection 46(2) of the Acts Interpretation Act 1901.
Example: Regulations may prescribe an instrumentality of a State or Territory that is an incorporated company, society or association and therefore not a State or Territory authority.
Legal person treated as different organisations in different capacities
(2) A legal person can have a number of different capacities in which the person does things. In each of those capacities, the person is taken to be a different organisation.
Example: In addition to his or her personal capacity, an individual may be the trustee of one or more trusts. In his or her personal capacity, he or she is one organisation. As trustee of each trust, he or she is a different organisation.
What is a State or Territory authority?
(3) In this Act:
State or Territory authority means:
(a) a State or Territory Minister; or
(b) a Department of State of a State or Territory; or
(c) a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a law of a State or Territory, other than:
(i) an incorporated company, society or association; or
(ii) an association of employers or employees that is registered or recognised under a law of a State or Territory dealing with the resolution of industrial disputes; or
(d) a body established or appointed, otherwise than by or under a law of a State or Territory, by:
(i) a Governor of a State; or
(ii) the Australian Capital Territory Executive; or
(iii) the Administrator of the Northern Territory; or
(iv) the Administrator of Norfolk Island; or
(v) a State or Territory Minister; or
(vi) a person holding an executive office mentioned in section 12 of the Norfolk Island Act 1979; or
(e) a person holding or performing the duties of an office established by or under, or an appointment made under, a law of a State or Territory, other than the office of head of a State or Territory Department (however described); or
(f) a person holding or performing the duties of an appointment made, otherwise than under a law of a State or Territory, by:
(i) a Governor of a State; or
(ii) the Australian Capital Territory Executive; or
(iii) the Administrator of the Northern Territory; or
(iv) the Administrator of Norfolk Island; or
(v) a State or Territory Minister; or
(vi) a person holding an executive office mentioned in section 12 of the Norfolk Island Act 1979; or
(g) a State or Territory court.
Making regulations to stop instrumentalities being organisations
(4) Before the Governor-General makes regulations prescribing an instrumentality of a State or Territory for the purposes of the definition of organisation in subsection (1), the Minister must:
(a) be satisfied that the State or Territory has requested that the instrumentality be prescribed for those purposes; and
(b) consider:
(i) whether treating the instrumentality as an organisation for the purposes of this Act adversely affects the government of the State or Territory; and
(ii) the desirability of regulating under this Act the collection, holding, use, correction, disclosure and transfer of personal information by the instrumentality; and
(iii) whether the law of the State or Territory regulates the collection, holding, use, correction, disclosure and transfer of personal information by the instrumentality to a standard that is at least equivalent to the standard that would otherwise apply to the instrumentality under this Act; and
(c) consult the Commissioner about the matters mentioned in subparagraphs (b)(ii) and (iii).
State does not include Territory
(5) In this section:
State does not include the Australian Capital Territory or the Northern Territory (despite subsection 6(1)).
(1) A business is a small business at a time (the test time) in a financial year (the current year) if its annual turnover for the previous financial year is $3,000,000 or less.
Test for new business
(2) However, if there was no time in the previous financial year when the business was carried on, the business is a small business at the test time only if its annual turnover for the current year is $3,000,000 or less.
What is a small business operator?
(3) A small business operator is an individual, body corporate, partnership, unincorporated association or trust that:
(a) carries on one or more small businesses; and
(b) does not carry on a business that is not a small business.
Entities that are not small business operators
(4) However, an individual, body corporate, partnership, unincorporated association or trust is not a small business operator if he, she or it:
(a) carries on a business that has had an annual turnover of more than $3,000,000 for a financial year that has ended after the later of the following:
(i) the time he, she or it started to carry on the business;
(ii) the commencement of this section; or
(b) provides a health service to another individual and holds any health information except in an employee record; or
(c) discloses personal information about another individual to anyone else for a benefit, service or advantage; or
(d) provides a benefit, service or advantage to collect personal information about another individual from anyone else; or
(e) is a contracted service provider for a Commonwealth contract (whether or not a party to the contract).
Private affairs of small business operators who are individuals
(5) Subsection (4) does not prevent an individual from being a small business operator merely because he or she does something described in paragraph (4)(b), (c) or (d):
(a) otherwise than in the course of a business he or she carries on; and
(b) only for the purposes of, or in connection with, his or her personal, family or household affairs.
Non-business affairs of other small business operators
(6) Subsection (4) does not prevent a body corporate, partnership, unincorporated association or trust from being a small business operator merely because it does something described in paragraph (4)(b), (c) or (d) otherwise than in the course of a business it carries on.
Disclosure compelled or made with consent
(7) Paragraph (4)(c) does not prevent an individual, body corporate, partnership, unincorporated association or trust from being a small business operator only because he, she or it discloses personal information about another individual:
(a) with the consent of the other individual; or
(b) as required or authorised by or under legislation.
Collection with consent or under legislation
(8) Paragraph (4)(d) does not prevent an individual, body corporate, partnership, unincorporated association or trust from being a small business operator only because he, she or it:
(a) collects personal information about another individual from someone else:
(i) with the consent of the other individual; or
(ii) as required or authorised by or under legislation; and
(b) provides a benefit, service or advantage to be allowed to collect the information.
Related bodies corporate
(9) Despite subsection (3), a body corporate is not a small business operator if it is related to a body corporate that carries on a business that is not a small business.
(1) The annual turnover of a business for a financial year is the total of the following that is earned in the year in the course of the business:
(a) the proceeds of sales of goods and/or services;
(b) commission income;
(c) repair and service income;
(d) rent, leasing and hiring income;
(e) government bounties and subsidies;
(f) interest, royalties and dividends;
(g) other operating income.
Note: The annual turnover for a financial year of a business carried on by an entity that does not carry on another business will often be similar to the total of the instalment income the entity notifies to the Commissioner of Taxation for the 4 quarters in the year (or for the year, if the entity pays tax in annual instalments).
(2) However, if a business has been carried on for only part of a financial year, its annual turnover for the financial year is the amount worked out using the formula:
(1) This Act applies, with the prescribed modifications (if any), in relation to a small business operator prescribed for the purposes of this subsection as if the small business operator were an organisation.
Note 1: The regulations may prescribe different modifications of the Act for different small business operators. See subsection 33(3A) of the Acts Interpretation Act 1901.
Note 2: Regulations may prescribe a small business operator by reference to one or more classes of small business operator. See subsection 46(2) of the Acts Interpretation Act 1901.
Regulations treating a small business operator as an organisation for particular acts or practices
(2) This Act also applies, with the prescribed modifications (if any), in relation to the prescribed acts or practices of a small business operator prescribed for the purposes of this subsection as if the small business operator were an organisation.
Note 1: The regulations may prescribe different modifications of the Act for different acts, practices or small business operators. See subsection 33(3A) of the Acts Interpretation Act 1901.
Note 2: Regulations may prescribe an act, practice or small business operator by reference to one or more classes of acts, practices or small business operators. See subsection 46(2) of the Acts Interpretation Act 1901.
What are modifications?
(3) In this section:
modifications includes additions, omissions and substitutions.
Making regulations
(4) Before the Governor-General makes regulations prescribing a small business operator, act or practice for the purposes of subsection (1) or (2), the Minister must:
(a) be satisfied that it is desirable in the public interest to regulate under this Act the small business operator, act or practice; and
(b) consult the Commissioner about the desirability of regulating under this Act the matters described in paragraph (a).
(2) A small business operator may make a choice in writing given to the Commissioner to be treated as an organisation.
Note: A small business operator may revoke such a choice by writing given to the Commissioner. See subsection 33(3) of the Acts Interpretation Act 1901.
(3) If the Commissioner is satisfied that a small business operator has made the choice to be treated as an organisation, the Commissioner must enter in a register of operators who have made such a choice:
(a) the name or names under which the operator carries on business; and
(b) the operator's ABN, if the operator has one under the A New Tax System (Australian Business Number) Act 1999.
(4) If a small business operator revokes a choice to be treated as an organisation, the Commissioner must remove from the register the material relating to the operator.
(5) The Commissioner may decide the form of the register and how it is to be kept.
(6) The Commissioner must make the register available to the public in the way that the Commissioner determines. However, the Commissioner must not make available to the public in the register information other than that described in subsection (3).
(1) This Act applies, with the prescribed modifications (if any), in relation to a prescribed State or Territory authority or a prescribed instrumentality of a State or Territory (except an instrumentality that is an organisation because of section 6C) as if the authority or instrumentality were an organisation.
Note 1: The regulations may prescribe different modifications of the Act for different authorities or instrumentalities. See subsection 33(3A) of the Acts Interpretation Act 1901.
Note 2: Regulations may prescribe an authority or instrumentality by reference to one or more classes of authority or instrumentality. See subsection 46(2) of the Acts Interpretation Act 1901.
What are modifications?
(2) In this section:
modifications includes additions, omissions and substitutions.
Making regulations to treat instrumentality etc. as organisation
(3) Before the Governor-General makes regulations prescribing a State or Territory authority or instrumentality of a State or Territory for the purposes of subsection (1), the Minister must:
(a) be satisfied that the relevant State or Territory has requested that the authority or instrumentality be prescribed for those purposes; and
(b) consult the Commissioner about the desirability of regulating under this Act the collection, holding, use, correction, disclosure and transfer of personal information by the authority or instrumentality.
(a) an act done, or a practice engaged in, as the case may be, by an agency (other than an eligible hearing service provider or an eligible case manager), a file number recipient, a credit reporting agency or a credit provider other than an eligible hearing service provider or:
(i) an agency specified in any of the following provisions of the Freedom of Information Act 1982:
(A) Schedule 1;
(B) Part I of Schedule 2;
(C) Division 1 of Part II of Schedule 2;
(ii) a federal court;
(iii) a Minister;
(iv) the National Crime Authority; or
(v) a Royal Commission; or
(b) an act done, or a practice engaged in, as the case may be, by a federal court or by an agency specified in Schedule 1 to the Freedom of Information Act 1982, being an act done, or a practice engaged in, in respect of a matter of an administrative nature; or
(c) an act done, or a practice engaged in, as the case may be, by an agency specified in Division 1 of Part II of Schedule 2 to the Freedom of Information Act 1982, other than an act done, or a practice engaged in, in relation to a record in relation to which the agency is exempt from the operation of that Act; or
(cb) an act done, or a practice engaged in, as the case may be, by an eligible case manager in connection with:
(i) the provision of case management services (within the meaning of the Employment Services Act 1994) to persons referred to the eligible case manager under Part 4.3 of that Act; or
(ii) the performance of functions conferred on the eligible case manager under that Act; or
(cc) an act done, or a practice engaged in, as the case may be, by an eligible hearing service provider in connection with the provision of hearing services under an agreement made under Part 3 of the Hearing Services Administration Act 1997; or
(d) an act done, or a practice engaged in, as the case may be, by a Minister in relation to the affairs of an agency (other than an eligible hearing service provider or an eligible case manager), not being an act done, or a practice engaged in, in relation to an existing record; or
(e) an act done, or a practice engaged in, as the case may be, by a Minister in relation to a record that is in the Minister's possession in his or her capacity as a Minister and relates to the affairs of an agency (other than an eligible hearing service provider or an eligible case manager); or
(ea) an act done, or a practice engaged in, as the case may be, by a Minister in relation to the affairs of an eligible case manager, being affairs in connection with:
(i) the provision of case management services (within the meaning of the Employment Services Act 1994) to persons referred to the eligible case manager under Part 4.3 of that Act; or
(ii) the performance of functions conferred on the eligible case manager under that Act; or
(eb) an act done, or a practice engaged in, as the case may be, by a Minister in relation to a record that is in the Minister's possession in his or her capacity as a Minister and relates to the affairs of an eligible case manager, being affairs in connection with:
(i) the provision of case management services (within the meaning of the Employment Services Act 1994) to persons referred to the eligible case manager under Part 4.3 of that Act; or
(ii) the performance of functions conferred on the eligible case manager under that Act; or
(ec) an act done, or a practice engaged in, as the case may be, by a Minister in relation to the affairs of an eligible hearing service provider, being affairs in connection with the provision of hearing services under an agreement made under Part 3 of the Hearing Services Administration Act 1997; or
(ed) an act done, or a practice engaged in, as the case may be, by a Minister in relation to a record that is in the Minister's possession in his or her capacity as a Minister and relates to the affairs of an eligible hearing service provider, being affairs in connection with the provision of hearing services under an agreement made under Part 3 of the Hearing Services Administration Act 1997; or
(ee) an act done, or a practice engaged in, by an organisation, other than an exempt act or exempt practice (see sections 7B and 7C);
but does not include a reference to an act done, or a practice engaged in, in relation to a record that has originated with, or has been received from:
(f) an intelligence agency;
(g) the Defence Intelligence Organisation or the Defence Signals Directorate of the Department of Defence; or
(h) the National Crime Authority.
(1A) Despite subsections (1) and (2), a reference in this Act (other than section 8) to an act or to a practice does not include a reference to the act or practice so far as it involves the disclosure of personal information to:
(a) the Australian Security Intelligence Organisation; or
(b) the Australian Secret Intelligence Service.
(2) Except so far as the contrary intention appears, a reference in this Act (other than section 8) to an act or to a practice includes, in the application of this Act otherwise than in respect of the Information Privacy Principles, the National Privacy Principles, an approved privacy code and the performance of the Commissioner's functions under section 27, a reference to an act done, or a practice engaged in, as the case may be, by an agency specified in Part II of Schedule 2 to the Freedom of Information Act 1982 or in Division 1 of Part II of that Schedule other than:
(a) an intelligence agency;
(b) the Defence Intelligence Organisation or the Defence Signals Directorate of the Department of Defence; or
(c) the National Crime Authority.
(3) Except so far as the contrary intention appears, a reference in this Act to doing an act includes a reference to:
(a) doing an act in accordance with a practice; or
(b) refusing or failing to do an act.
(3A) For the purposes of this Act, an act is only to be taken to have been done, and a practice is only to be taken to have been engaged in, by a credit provider that is not a corporation if the act is done, or the practice is engaged in, in the course of, or for the purposes of, banking (other than State banking not extending beyond the limits of the State concerned) carried on by the credit provider.
(4) For the purposes of paragraphs 27(1)(b), (c), (d), (e), (g), (k) and (m), of subsection 31(2) and of Part VI, this section has effect as if a reference in subsection (1) of this section to an act done, or to a practice engaged in, included a reference to an act that is proposed to be done, or to a practice that is proposed to be engaged in, as the case may be.
(a) the act or practice were an act done, or practice engaged in, by an organisation; and
(b) the agency mentioned in that subsection were the organisation.
(2) Subsection (1) applies to acts done, and practices engaged in, by a prescribed agency. Regulations for this purpose may prescribe an agency only if it is specified in Part I of Schedule 2 to the Freedom of Information Act 1982.
(3) Subsection (1) also applies to acts and practices that:
(a) are done or engaged in by an agency specified in Division 1 of Part II of Schedule 2 to the Freedom of Information Act 1982 in relation to documents in respect of its commercial activities or the commercial activities of another entity; and
(b) relate to those commercial activities.
(4) This section has effect despite subparagraph 7(1)(a)(i), paragraph 7(1)(c) and subsection 7(2).
(5) In this section:
modifications includes additions, omissions and substitutions.
(1) An act done, or practice engaged in, by an organisation that is an individual is exempt for the purposes of paragraph 7(1)(ee) if the act is done, or the practice is engaged in, other than in the course of a business carried on by the individual.
Note: See also section 16E which provides that the National Privacy Principles do not apply for the purposes of, or in connection with, an individual's personal, family or household affairs.
Organisation acting under Commonwealth contract
(2) An act done, or practice engaged in, by an organisation is exempt for the purposes of paragraph 7(1)(ee) if:
(a) the organisation is a contracted service provider for a Commonwealth contract (whether or not the organisation is a party to the contract); and
(b) the organisation would be a small business operator if it were not a contracted service provider for a Commonwealth contract; and
(c) the act is done, or the practice is engaged in, otherwise than for the purposes of meeting (directly or indirectly) an obligation under a Commonwealth contract for which the organisation is the contracted service provider.
Note: This puts the organisation in the same position as a small business operator as far as its activities that are not for the purposes of a Commonwealth contract are concerned, so the organisation need not comply with the National Privacy Principles or a binding approved privacy code in relation to those activities.
Employee records
(3) An act done, or practice engaged in, by an organisation that is or was an employer of an individual, is exempt for the purposes of paragraph 7(1)(ee) if the act or practice is directly related to:
(a) a current or former employment relationship between the employer and the individual; and
(b) an employee record held by the organisation and relating to the individual.
Journalism
(4) An act done, or practice engaged in, by a media organisation is exempt for the purposes of paragraph 7(1)(ee) if the act is done, or the practice is engaged in:
(a) by the organisation in the course of journalism; and
(b) at a time when the organisation is publicly committed to observe standards that:
(i) deal with privacy in the context of the activities of a media organisation (whether or not the standards also deal with other matters); and
(ii) have been published in writing by the organisation or a person or body representing a class of media organisations.
Organisation acting under State contract
(5) An act done, or practice engaged in, by an organisation is exempt for the purposes of paragraph 7(1)(ee) if:
(a) the organisation is a contracted service provider for a State contract (whether or not the organisation is a party to the contract); and
(b) the act is done, or the practice is engaged in for the purposes of meeting (directly or indirectly) an obligation under the contract.
(1) An act done, or practice engaged in, by an organisation (the political representative) consisting of a member of a Parliament, or a councillor (however described) of a local government authority, is exempt for the purposes of paragraph 7(1)(ee) if the act is done, or the practice is engaged in, for any purpose in connection with:
(a) an election under an electoral law; or
(b) a referendum under a law of the Commonwealth or a law of a State or Territory; or
(c) the participation by the political representative in another aspect of the political process.
Contractors for political representatives etc.
(2) An act done, or practice engaged in, by an organisation (the contractor) is exempt for the purposes of paragraph 7(1)(ee) if the act is done or the practice is engaged in:
(a) for the purposes of meeting an obligation under a contract between the contractor and a registered political party or a political representative described in subsection (1); and
(b) for any purpose in connection with one or more of the following:
(i) an election under an electoral law;
(ii) a referendum under a law of the Commonwealth or a law of a State or Territory;
(iii) the participation in another aspect of the political process by the registered political party or political representative;
(iv) facilitating acts or practices of the registered political party or political representative for a purpose mentioned in subparagraph (i), (ii) or (iii) of this paragraph.
Subcontractors for organisations covered by subsection (1) etc.
(3) An act done, or practice engaged in, by an organisation (the subcontractor) is exempt for the purposes of paragraph 7(1)(ee) if the act is done or the practice is engaged in:
(a) for the purposes of meeting an obligation under a contract between the subcontractor and a contractor described in subsection (2); and
(b) for a purpose described in paragraph (2)(b).
Volunteers for registered political parties
(4) An act done voluntarily, or practice engaged in voluntarily, by an organisation for or on behalf of a registered political party and with the authority of the party is exempt for the purposes of paragraph 7(1)(ee) if the act is done or the practice is engaged in for any purpose in connection with one or more of the following:
(a) an election under an electoral law;
(b) a referendum under a law of the Commonwealth or a law of a State or Territory;
(c) the participation in another aspect of the political process by the registered political party;
(d) facilitating acts or practices of the registered political party for a purpose mentioned in paragraph (a), (b) or (c).
Effect of subsection (4) on other operation of Act
(5) Subsection (4) does not otherwise affect the operation of the Act in relation to agents or principals.
Meaning of electoral law and Parliament
(6) In this section:
electoral law means a law of the Commonwealth, or a law of a State or Territory, relating to elections to a Parliament or to a local government authority.
Parliament means:
(a) the Parliament of the Commonwealth; or
(b) a State Parliament; or
(c) the legislature of a Territory.
Note: To avoid doubt, this section does not make exempt for the purposes of paragraph 7(1)(ee) an act or practice of the political representative, contractor, subcontractor or volunteer for a registered political party involving the use or disclosure (by way of sale or otherwise) of personal information in a way not covered by subsection (1), (2), (3) or (4) (as appropriate). The rest of this Act operates normally in relation to that act or practice.
(a) an act done or practice engaged in by, or information disclosed to, a person employed by, or in the service of, an agency, organisation, file number recipient, credit reporting agency or credit provider in the performance of the duties of the person's employment shall be treated as having been done or engaged in by, or disclosed to, the agency, organisation, recipient, credit reporting agency or credit provider;
(b) an act done or practice engaged in by, or information disclosed to, a person on behalf of, or for the purposes of the activities of, an unincorporated body, being a board, council, committee, sub-committee or other body established by or under a Commonwealth enactment for the purpose of assisting, or performing functions in connection with, an agency or organisation, shall be treated as having been done or engaged in by, or disclosed to, the agency or organisation; and
(c) an act done or practice engaged in by, or information disclosed to, a member, staff member or special member of the Australian Federal Police in the performance of his or her duties as such a member, staff member or special member shall be treated as having been done or engaged in by, or disclosed to, the Australian Federal Police.
(2) Where:
(a) an act done or a practice engaged in by a person, in relation to a record, is to be treated, under subsection (1), as having been done or engaged in by an agency; and
(b) that agency is not the record-keeper in relation to that record;
that act or practice shall be treated as the act or the practice of the record-keeper in relation to that record.
(3) For the purposes of the application of this Act in relation to an organisation that is a partnership:
(a) an act done or practice engaged in by a partner is taken to have been done or engaged in by the organisation; and
(b) a communication (including a complaint, notice, request or disclosure of information) made to a partner is taken to have been made to the organisation.
(4) For the purposes of the application of this Act in relation to an organisation that is an unincorporated association:
(a) an act done or practice engaged in by a member of the committee of management of the association is taken to have been done or engaged in by the organisation; and
(b) a communication (including a complaint, notice, request or disclosure of information) made to a member of the committee of management of the association is taken to have been made to the organisation.
(5) For the purposes of the application of this Act in relation to an organisation that is a trust:
(a) an act done or practice engaged in by a trustee is taken to have been done or engaged in by the organisation; and
(b) a communication (including a complaint, notice or request or disclosure of information) made to a trustee is taken to have been made to the organisation.
(2) Subject to subsection (3), where personal information is collected by a person:
(a) in the course of the person's employment by, or in the service of, an agency other than the Australian Federal Police; or
(b) as a member, staff member or special member of the Australian Federal Police in the performance of his or her duties as such a member, staff member or special member;
then, for the purposes of this Act:
(c) if paragraph (a) applies--the agency first referred to in that paragraph; and
(d) if paragraph (b) applies--the Australian Federal Police;
shall be treated as a collector in relation to that information.
(3) Where personal information is collected by a person for the purposes of the activities of, an unincorporated body, being a board, council, committee, sub-committee or other body established by or under a Commonwealth enactment for the purpose of assisting, or performing functions connected with, an agency, that agency shall be treated, for the purposes of this Act, as a collector in relation to that information.
(2) Subject to subsections (3), (4) and (5), where a record of personal information is in the possession or under the control of a person:
(a) in the course of the person's employment in the service of or by an agency other than the Australian Federal Police; or
(b) as a member, staff member or special member of the Australian Federal Police in the performance of his or her duties as such a member, staff member or special member;
then, for the purposes of this Act, the record-keeper in relation to that record shall be taken to be:
(c) if paragraph (a) applies--the agency first referred to in that paragraph; and
(d) if paragraph (b) applies--the Australian Federal Police.
(3) Where a record of personal information is in the possession or under the control of a person for the purposes of the activities of, an unincorporated body, being a board, council, committee, sub-committee or other body established by or under a Commonwealth enactment for the purpose of assisting, or performing functions connected with, an agency, that agency shall be regarded, for the purposes of this Act, as the record-keeper in relation to that record.
(4) Where:
(a) a record of personal information (not being a record relating to the administration of the Australian Archives) is in the custody of the Australian Archives; or
(b) a record of personal information (not being a record relating to the administration of the Australian War Memorial) is in the custody of the Australian War Memorial;
the agency by or on behalf of which the record was placed in that custody or, if that agency no longer exists, the agency to whose functions the contents of the record are most closely related, shall be regarded, for the purposes of this Act, as the record-keeper in relation to that record.
(5) Where a record of personal information was placed by or on behalf of an agency in the memorial collection within the meaning of the Australian War Memorial Act 1980, that agency or, if that agency no longer exists, the agency to whose functions the contents of the record are most closely related, shall be regarded, for the purposes of this Act, as the record-keeper in relation to that record.
(2) Subject to subsection (3), where a record that contains tax file number information is in the possession or under the control of a person:
(a) in the course of the person's employment in the service of or by a person or body other than an agency;
(b) in the course of the person's employment in the service of or by an agency other than the Australian Federal Police; or
(c) as a member, staff member or special member of the Australian Federal Police in the performance of his or her duties as such a member, staff member or special member;
then, for the purposes of this Act, the file number recipient in relation to that record shall be taken to be:
(d) if paragraph (a) applies--the person's employer;
(e) if paragraph (b) applies--the agency first referred to in that paragraph; and
(f) if paragraph (c) applies--the Australian Federal Police.
(3) Where a record that contains tax file number information is in the possession or under the control of a person for the purposes of the activities of, an unincorporated body, being a board, council, committee, sub-committee or other body established by or under a Commonwealth enactment for the purpose of assisting, or performing functions connected with, an agency, that agency shall be treated, for the purposes of this Act, as the file number recipient in relation to that record.
(a) a bank; or
(b) a corporation (other than an agency):
(iii) a substantial part of whose business or undertaking is the provision of loans (including the provision of loans by issuing credit cards); or
(iv) that carries on a retail business in the course of which it issues credit cards to members of the public in connection with the sale of goods, or the supply of services, by the corporation; or
(v) that:
(A) carries on a business or undertaking involving the provision of loans (including the provision of loans by issuing credit cards); and
(B) is included in a class of corporations determined by the Commissioner to be credit providers for the purposes of this Act; or
(c) a person:
(i) who is not a corporation; and
(ii) in relation to whom paragraph (b) would apply if the person were a corporation; or
(d) an agency that:
(i) carries on a business or undertaking that involves the making of loans; and
(ii) is determined by the Commissioner to be a credit provider for the purposes of this Act.
(1A) If an agency is a credit provider because of paragraph (1)(d), Part IIIA has effect in relation to the carrying on by the agency of a business or undertaking involving the making of loans despite anything in Part III or in the Freedom of Information Act 1982.
(2) For the purposes of this Act, a corporation that would, but for this section, be a credit provider is not to be regarded as a credit provider if it is included in a class of corporations declared by the regulations not to be credit providers.
(3) A determination under sub-subparagraph (1)(b)(v)(B) or subparagraph (1)(d)(ii) is to be made by notice in writing published in the Gazette.
(4) A notice so published is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(4A) Subsection (4B) applies to a person who carries on a business that is involved in one or both of the following:
(a) a securitisation arrangement;
(b) managing loans that are the subject of a securitisation arrangement.
(4B) While a person to whom this subsection applies is performing a task that is reasonably necessary for purchasing, funding or managing, or processing an application for, a loan by means of a securitisation arrangement (being a loan that has been provided by, or in respect of which application has been made to, a credit provider):
(a) the person:
(i) is taken, for the purposes of this Act, to be another credit provider; and
(ii) is subject to the same obligations under this Act as any other credit provider; and
(b) for the purposes of this Act, the loan is taken to have been provided by, or the application for the loan is taken to have been made to, both the person and the first-mentioned credit provider.
(4C) Nothing in this Act prevents a report (within the meaning of subsection 18N(9)) to which section 18N applies being disclosed if:
(a) the disclosure is reasonably necessary for purchasing, funding or managing, or processing an application for, a loan by means of a securitisation arrangement (being a loan that has been provided by, or in respect of which an application has been made to, a credit provider); and
(b) the disclosure takes place between a person to whom subsection (4B) applies in relation to that loan and:
(i) the credit provider; or
(ii) another person to whom that subsection applies in relation to that loan.
(4D) A reference in subsection (4B) or (4C) to purchasing or funding a loan by means of a securitisation arrangement includes a reference to credit enhancement of the loan.
(4E) A reference in subsection (4B) or (4C) to managing a loan does not include a reference to an act relating to the collection of overdue payments in respect of the loan if the act is undertaken by a person whose primary function in relation to the loan is the collection of overdue payments.
(5) Subject to subsection (6), while a person is acting as an agent of a credit provider in performing, on behalf of the credit provider, a task that is necessary:
(a) in processing an application for a loan; or
(b) in managing:
(i) a loan given by the credit provider; or
(ii) an account maintained by any person with the credit provider;
the first-mentioned person:
(c) is taken, for the purposes of this Act, to be another credit provider; and
(d) is subject to the same obligations under this Act as any other credit provider.
(6) Nothing in this Act prevents such an agent of a credit provider disclosing to the credit provider, in the agent's capacity as such an agent, a report (within the meaning of subsection 18N(9)) to which section 18N applies.
(7) The reference in subsection (5) to the management of a loan does not include a reference to any act relating to the collection of payments that are overdue in respect of the loan.
(a) would have a particular application; and
(b) by virtue of having that application, would be a law with respect to, or with respect to matters including:
(i) State banking not extending beyond the limits of the State concerned; or
(ii) State insurance not extending beyond the limits of the State concerned;
the provision is not to have that application.
(2) This Act also has the effect it would have if its operation in relation to organisations were expressly confined to an operation to give effect to the International Covenant on Civil and Political Rights, and in particular Article 17 of the Covenant.
Note: The text of the International Covenant on Civil and Political Rights is set out in Australian Treaty Series 1980 No. 23. In 2000, this was available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible on the Internet through that Department's world-wide web site.
(3) This Act also has the effect it would have if its operation in relation to organisations were expressly confined to acts or practices covered by subsection 5B(1) (which deals with acts and practices outside Australia and the external Territories by organisations).
(4) This Act also has the effect it would have if its operation in relation to organisations were expressly confined to organisations that are corporations.
(5) This Act also has the effect it would have if its operation in relation to organisations were expressly confined to acts or practices of organisations taking place in the course of, or in relation to, trade or commerce:
(a) between Australia and places outside Australia; or
(b) among the States; or
(c) within a Territory, between a State and a Territory or between 2 Territories.
(6) This Act also has the effect it would have if its operation in relation to organisations were expressly confined to acts or practices of organisations taking place using a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution.
(7) This Act also has the effect it would have if its operation in relation to organisations were expressly confined to acts or practices of organisations taking place in a Territory.
(8) This Act also has the effect it would have if its operation in relation to organisations were expressly confined to acts or practices of organisations taking place in a place acquired by the Commonwealth for public purposes.