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Part I—Preliminary

1.   Short title [see Note 1]

This Act may be cited as the Privacy Act 1988.

2.   Commencement [see Note 1]

This Act commences on a day to be fixed by Proclamation.

3.   Saving of certain State and Territory laws

It is the intention of the Parliament that this Act is not to affect the operation of a law of a State or of a Territory that makes provision with respect to the collection, holding, use, correction, disclosure or transfer of personal information (including such a law relating to credit reporting or the use of information held in connection with credit reporting) and is capable of operating concurrently with this Act.

Note:  Such a law can have effect for the purposes of the provisions of the National Privacy Principles that regulate the handling of personal information by organisations by reference to the effect of other laws.

3A.Application of the Criminal Code

Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.

Note:   Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

4.   Act to bind the Crown

(1)    This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island.

(2)    Nothing in this Act renders the Crown in right of the Commonwealth, of a State, of the Australian Capital Territory, of the Northern Territory or of Norfolk Island liable to be prosecuted for an offence.

(3)    Nothing in this Act shall be taken to have the effect of making the Crown in right of a State, of the Australian Capital Territory, of the Northern Territory or of Norfolk Island an agency for the purposes of this Act.

5.   Interpretation of Information Privacy Principles

For the purposes of the interpretation of the Information Privacy Principles, each Information Privacy Principle shall be treated as if it were a section of this Act.

5A.Extension to external Territories

This Act extends to all external Territories.

5B.Extra‑territorial operation of Act

Application to overseas acts and practices of organisations

(1)    This Act (except Divisions 4 and 5 of Part III and Part IIIA) and approved privacy codes extend to an act done, or practice engaged in, outside Australia and the external Territories by an organisation if:

(a)    subject to subsection (1A), the act or practice relates to personal information about an Australian citizen or a person whose continued presence in Australia is not subject to a limitation as to time imposed by law; and

(b)    the requirements of subsection (2) or (3) are met.

Note:  The act or practice overseas will not breach a National Privacy Principle or approved privacy code or be an interference with the privacy of an individual if the act or practice is required by an applicable foreign law. See sections 6A, 6B and 13A.

(1A) Paragraph (1)(a) does not apply in relation to National Privacy Principle 9.

Note:  Because of subsection (1A), the extra‑territorial application of National Privacy Principle 9 is not limited by the citizenship etc. requirement of paragraph (1)(a).

Organisational link with Australia

(2)    The organisation must be:

(a)    an Australian citizen; or

(b)    a person whose continued presence in Australia is not subject to a limitation as to time imposed by law; or

(c)     a partnership formed in Australia or an external Territory; or

(d)    a trust created in Australia or an external Territory; or

(e)    a body corporate incorporated in Australia or an external Territory; or

(f)      an unincorporated association that has its central management and control in Australia or an external Territory.

Other link with Australia

(3)    All of the following conditions must be met:

(a)    the organisation is not described in subsection (2);

(b)    the organisation carries on business in Australia or an external Territory;

(c)     the personal information was collected or held by the organisation in Australia or an external Territory, either before or at the time of the act or practice.

Power to deal with complaints about overseas acts and practices

(4)    Part V of this Act has extra‑territorial operation so far as that Part relates to complaints and investigation concerning acts and practices to which this Act extends because of subsection (1).

Note:  This lets the Commissioner take action overseas to investigate complaints and lets the ancillary provisions of Part V operate in that context.