Privacy and Personal Information Protection Act 1998

This Act is the Privacy and Personal Information Protection Act 1998.

This Act commences on a day or days to be appointed by proclamation.

In this Act—

affected individual, for Part 6A—see section 59D(2).

approved form, for Part 6A—see section 59A.

assessment, for Part 6A—see section 59E(2)(b).

assessor, for Part 6A—see section 59G(1).

Centre for Health Record Linkage means the group of persons referred to as the Centre for Health Record Linkage employed in the NSW Health Service.

Commonwealth agency means an entity referred to in paragraph (a)–(h) of the definition of agency in the Privacy Act 1988 of the Commonwealth.

convicted inmate has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.

eligible data breach, for Part 6A—see section 59D(1).

exercise a function includes perform a duty.

function includes a power, authority or duty.

head, for Part 6A—see section 59A.

health privacy code of practice, for Part 6A—see section 59A.

Health Privacy Principle, for Part 6A—see section 59A.

held, in relation to personal information—

for Part 6A—see section 59C, or

otherwise—see section 4(4).

information protection principle or principle means a provision set out in Division 1 of Part 2.

investigative agency means—

any of the following—

the Ombudsman’s Office,

the Independent Commission Against Corruption,

the Inspector of the Independent Commission Against Corruption,

the Law Enforcement Conduct Commission,

the Inspector of the Law Enforcement Conduct Commission and any staff of the Inspector,

the Health Care Complaints Commission,

the Office of the Legal Services Commissioner,

the Ageing and Disability Commissioner,

the Children’s Guardian,

a person or body prescribed by the regulations for the purposes of this definition, or

any other public sector agency with investigative functions if—

those functions are exercisable under the authority of an Act or statutory rule (or where that authority is necessarily implied or reasonably contemplated under an Act or statutory rule), and

the exercise of those functions may result in the agency taking or instituting disciplinary, criminal or other formal action or proceedings against a person or body under investigation, or

a public sector agency conducting an investigation for or on behalf of an agency referred to in paragraph (a) or (b).

law enforcement agency means any of the following—

the NSW Police Force, or the police force of another State or a Territory,

the New South Wales Crime Commission,

the Australian Federal Police,

the Australian Crime Commission,

the Director of Public Prosecutions of New South Wales, of another State or a Territory, or of the Commonwealth,

the Department of Justice,

the Independent Gaming and Liquor Authority under the Gaming and Liquor Administration Act 2007,

the NSW Independent Casino Commission under the Casino Control Act 1992,

the Office of the Sheriff of New South Wales,

a person or body prescribed by the regulations for the purposes of this definition.

local government authority means a council, a county council or a joint organisation, within the meaning of the Local Government Act 1993.

mandatory notification of data breach scheme means the scheme under Part 6A for assessing and notifying data breaches.

personal information is defined in section 4.

privacy code of practice or code means a privacy code of practice made under Part 3.

Privacy Commissioner means the Privacy Commissioner appointed under this Act.

public register means a register of personal information that is required by law to be, or is made, publicly available or open to public inspection (whether or not on payment of a fee).

public sector agency means any of the following—

a Public Service agency or the Teaching Service,

the office of a political office holder within the meaning of the Members of Parliament Staff Act 2013, being the office comprising the persons employed by the political office holder under Part 2 of that Act,

a statutory body representing the Crown,

(Repealed)

an auditable entity within the meaning of the Government Sector Audit Act 1983 or any other entity within the meaning of that Act (or entity of a kind) prescribed by the regulations, but excluding an entity (or entity of a kind) prescribed by the regulations,

the NSW Police Force,

(Repealed)

a local government authority,

a State owned corporation that is not subject to the Privacy Act 1988 of the Commonwealth,

a person or body that—

provides data services (being services relating to the collection, processing, disclosure or use of personal information or that provide for access to such information) for or on behalf of a body referred to in paragraph (a)–(f1) of this definition, or that receives funding from any such body in connection with providing data services, and

is prescribed by the regulations for the purposes of this definition.

Note.

Section 4B enables the regulations to declare that a public sector agency is to be regarded as being part of another public sector agency for the purposes of this Act. It also enables the regulations to declare that a part of a public sector agency is to be regarded as being a separate public sector agency from the public sector agency of which it forms part for the purposes of this Act.

public sector official means any of the following—

a person appointed by the Governor, or a Minister, to a statutory office,

a judicial officer within the meaning of the Judicial Officers Act 1986,

a person employed in the Public Service, the Transport Service of New South Wales, the Teaching Service, the NSW Health Service or the NSW Police Force,

a person employed by a political office holder under Part 2 of the Members of Parliament Staff Act 2013,

a person employed by a member of Parliament under Part 3 of the Members of Parliament Staff Act 2013,

a local government councillor or a person employed by a local government authority,

a person who is an officer of the Legislative Council or Legislative Assembly or who is employed by (or who is under the control of) the President of the Legislative Council or the Speaker of the Legislative Assembly, or both,

a person who is employed or engaged by—

a public sector agency, or

a person referred to in paragraph (a)–(e),

a person who acts for or on behalf of, or in the place of, or as deputy or delegate of, a public sector agency or person referred to in paragraph (a)–(e).

publicly available publication does not include any publication or document declared by the regulations not to be a publicly available document for the purposes of this Act.

staff of the Inspector of the Independent Commission Against Corruption means—

any staff employed under section 57E (1) or (2) of the Independent Commission Against Corruption Act 1988, and

any consultants engaged under section 57E (3) of that Act.

staff of the Inspector of the Law Enforcement Conduct Commission means—

any staff employed under section 128 (1) of the Law Enforcement Conduct Commission Act 2016, and

any consultants engaged under section 128 (4) (c) of that Act.

State record has the same meaning as in the State Records Act 1998.

Tribunal means the Civil and Administrative Tribunal.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

Notes included in this Act are explanatory notes and do not form part of this Act.

In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

Personal information includes such things as an individual’s fingerprints, retina prints, body samples or genetic characteristics.

Personal information does not include any of the following—

information about an individual who has been dead for more than 30 years,

information about an individual that is contained in a publicly available publication,

information about a witness who is included in a witness protection program under the Witness Protection Act 1995 or who is subject to other witness protection arrangements made under an Act,

information about an individual arising out of a warrant issued under the Telecommunications (Interception) Act 1979 of the Commonwealth,

information about an individual that is contained in a public interest disclosure within the meaning of the Public Interest Disclosures Act 2022, or that has been collected while dealing with a voluntary public interest disclosure in accordance with that Act, Part 5, Division 2,

information about an individual arising out of, or in connection with, an authorised operation within the meaning of the Law Enforcement (Controlled Operations) Act 1997,

information about an individual arising out of a Royal Commission or Special Commission of Inquiry,

information about an individual arising out of a complaint made under Part 8A of the Police Act 1990,

information about an individual that is contained in Cabinet information or Executive Council information under the Government Information (Public Access) Act 2009,

information or an opinion about an individual’s suitability for appointment or employment as a public sector official,

information about an individual that is obtained about an individual under Chapter 8 (Adoption information) of the Adoption Act 2000,

information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subsection.

Personal information is held by a public sector agency if—

the agency is in possession or control of the information, or

the information is in the possession or control of a person employed or engaged by the agency in the course of such employment or engagement, or

the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998.

For the purposes of this Act, personal information is not collected by a public sector agency if the receipt of the information by the agency is unsolicited.

Except as provided by this Act or the Health Records and Information Privacy Act 2002, the definition of personal information in section 4 does not include health information within the meaning of the Health Records and Information Privacy Act 2002.

The regulations may declare that—

a specified public sector agency is not to be regarded as a separate public sector agency and instead is to be regarded for the purposes of this Act as part of and included in another specified public sector agency in respect of specified functions, or

a specified office, branch or other part of a public sector agency is for the purposes of this Act to be regarded as being a separate public sector agency to the public sector agency of which it forms part in respect of specified functions that it exercises.

The regulations may make provision for or with respect to the application of this Act (with such modifications, if any, as may be prescribed) for the purposes of a declaration under this section.

The Minister must, before recommending the making of a regulation under this section, consider whether the making of a declaration under this section will permit the sharing of personal information between public sector agencies and, if so, whether the sharing of that information would be appropriate in the circumstances.

Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009.

In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency.

Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court’s, or the tribunal’s, judicial functions.

Nothing in this Act affects the manner in which a Royal Commission, or any Special Commission of Inquiry, exercises the Commission’s functions.

In this section, judicial functions of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it, and includes—

in relation to a Judge of the Local Court—such of the functions of the judge as relate to the conduct of committal proceedings, and

in relation to a coroner—such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 2009.

This Act binds the Crown in right of New South Wales and also, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.

A public sector agency must not collect personal information unless—

the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and

the collection of the information is reasonably necessary for that purpose.

A public sector agency must not collect personal information by any unlawful means.

A public sector agency must, in collecting personal information, collect the information directly from the individual to whom the information relates unless—

the individual has authorised collection of the information from someone else, or

in the case of information relating to a person who is under the age of 16 years—the information has been provided by a parent or guardian of the person.

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of the following—

the fact that the information is being collected,

the purposes for which the information is being collected,

the intended recipients of the information,

whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided,

the existence of any right of access to, and correction of, the information,

the name and address of the agency that is collecting the information and the agency that is to hold the information.