Document version: Overview 2019.B, 14 November 2019.
Introduction to these Guidelines
Under the Victorian Privacy and Data Protection Act 2014 (PDP Act), the Information Commissioner has the function of issuing guidelines for the Information Privacy Principles (IPPs).1 The IPPs outline the minimum standard for the collection, storage, handling, use, disclosure and destruction of personal information by Victorian public sector (VPS) organisations. The IPPs are relevant for all VPS organisations, as well as some private or community sector organisations where those organisations are carrying out functions under a State contract with a Victorian public sector organisation.2
These Guidelines are intended for individuals working with the IPPs under the PDP Act. They indicate how the Information Commissioner interprets and applies the IPPs, and the matters that the Information Commissioner may consider when advising organisations during consultations, dealing with complaints, or examining acts and practices or breaches during an investigation. They also provide guidance to organisations on the broad application of the IPPs and how to embed privacy protections in workplace culture and practices.
These Guidelines are not legally binding and do not constitute legal advice about how an organisation must comply with the IPPs in specific circumstances. Ultimately, organisations must decide how to interpret and apply the IPPs in a manner that is consistent with the PDP Act. Organisations should consult their privacy officer or unit, or seek legal advice, as appropriate.
Organisation may also contact OVIC with queries about the IPPs or the Guidelines. However, OVIC can only provide guidance of a general nature.
These Guidelines should be read together with the full text of the IPPs. In practice, the IPPs often interact. The application of the IPPs can differ depending on the context of the situation, so organisations should apply the IPPs on a case by case basis.
Objects of the PDP Act and the Information Lifecycle
Organisations should apply the IPPs with the objects of the PDP Act in mind.3 They are:
- to balance the public interest in the free flow of information with the public interest in protecting the privacy of personal information in the public sector;
- to balance the public interest in promoting open access to public sector information with the public interest in protecting its security;
- to promote awareness of responsible personal information handling practices in the public sector;
- to promote the responsible and transparent handling of personal information handling in the public sector; and
- to promote responsible data security practices in the public sector.
The PDP Act and the IPPs imply some shift in control from the collectors and users of personal information to the sources and subjects of it. However, it is not a total shift. As the objects of the PDP Act outline, it is a balancing of various public interests.
The IPPs govern the collection, use, disclosure, and destruction of information throughout the information lifecycle. This is illustrated in the following diagram, which indicates where in that lifecycle each of the ten IPPs is most relevant.
When do the IPPs apply?
Which organisations are covered by the PDP Act?
Section 13 of the PDP Act provides a list of the categories of bodies and persons who are subject to Part 3 of the PDP Act and must comply with the IPPs. These are:
- Parliamentary Secretaries, including the Parliamentary Secretary of the Cabinet;
- public sector agencies, meaning public service bodies or public entities within the meaning of the Public Administration Act 2004 (Vic) (this includes Victorian government departments);
- local councils;
- bodies established or appointed for a public purpose by or under an Act (such as Victorian public universities);
- bodies established or appointed for a public purpose by the Governor in Council, or a Minister, otherwise than under an Act;
- persons holding an office or position established by or under an Act (other than the office of member of the Parliament of Victoria) or to which the person appointed by the Governor in Council, or a Minister, otherwise than under an Act (such as the Victorian Ombudsman);
- courts or tribunals;
- Victoria Police;
- a contracted service provider, but only in relation to its provision of services under a State contract which contains a provision of a kind referred to in s 17(2) of the PDP Act;4 and
- any other body that is declared by an order published in the Government Gazette to be an organisation covered under the PDP Act.
These categories of bodies and persons are ‘public sector organisations’ for the purpose of Part 3 of the PDP Act. The starting point for these organisations is that they need to act in accordance with the IPPs.5 However, there are several important exemptions which exclude categories of information held by these organisations, or some of their functions, from the coverage of the IPPs. These exemptions are discussed below in the section ‘When do the IPPs not apply?’
The remainder of this section discusses certain categories of organisations in more detail. Some of the categories discussed below are drawn from the above list, while others are classes of organisations about which OVIC frequently receives queries.
Public sector agencies
The IPPs apply to public sector agencies, which is defined in s 3 of the PDP Act to mean public service bodies or public entities within the meaning of the Public Administration Act 2004 (Vic).
Public sector bodies are Departments, Administrative Offices and the Victorian Public Sector Commission.
Public entities are defined in s 5 of the Public Administration Act 2004 (Vic). The definition includes certain bodies that are established under an Act or the Corporations Act 2001 (Cth) or by the Victorian government. Among other requirements, these bodies must have a public function to exercise on behalf of the State, or be wholly owned by the State. Certain types of bodies are expressly excluded from the definition (as listed in s 5(1)(da)-(h) of the Public Administration Act 2004 (Vic)), such as Parliamentary Committees and Royal Commissions.
Contracted service providers to Victorian government organisations
Contracted service providers (CSPs) may be bound by the IPPs contained in Schedule 1 of the PDP Act where a State contract contains a provision binding the CSP to the IPPs. The CSP is then bound by the IPPs in the same way and to the same extent as the outsourcing public sector organisation.
If there is no such provision in the State contract, it is the responsibility of the outsourcing public sector organisation to ensure that the CSP upholds the relevant privacy obligations under the PDP Act.
The IPPs apply to an act or practice of a CSP when:
- there is a State contract between the CSP and the outsourcing government agency;
- that State contract contains a provision binding the CSP to the IPPs, drafted to give effect to s 17(2); and
- the relevant act or practice was undertaken for the purposes of the State contract.
A State contract means a contract between an organisation and a CSP under which services are provided by the CSP to the organisation in connection with the performance of the functions of the organisation.
CSPs to State government are not bound by the Commonwealth Privacy Act 1988 in relation to their conduct under a State contract. The Privacy Act 1988 (Cth) expressly gives way to State regulation of organisations providing services under a State contract. However, the other activities of the CSP may be regulated by the Privacy Act 1988 (Cth).
Health service providers
Victorian public hospitals and health service providers that fall within s 13 of the PDP Act have obligations under the PDP Act in relation to personal information that is not health related. For example, this includes staff records. Private hospitals and health service providers are not covered by the PDP Act, unless they are carrying out services under a State contract not related to health. The privacy of health information handled by entities that have access to health information, including both public and private health service providers, is regulated under the Health Records Act 2001 (Vic). The Health Records Act 2001 (Vic) is administered by the Health Complaints Commissioner. Private sector health providers may also be regulated under the Privacy Act 1988 (Cth) which is administered by the Office of the Australian Information Commissioner.
State government schools are required to comply with the IPPs. However, independent or denominational schools are not. Typically, independent or denominational schools are subject to the Privacy Act 1988 (Cth).
Organisations ‘established by or under an Act’ for a ‘public purpose’
To determine whether a body was ‘established for a public purpose’, consider:
- the legislation that establishes the body;
- the organisation’s constitution or rules, if they have been referred to in the Act;
- where purposes were multiple or a mix of public and private purposes, whether the dominant purpose of establishing the organisation was public; and
- if more than one dominant purpose, whether one of them was a public purpose. Note ‘public purpose’ does not just mean ‘governmental’ purpose – it can be broader and pertains to the people of a community or locality.
When do the IPPs not apply?
There are limited exemptions applicable to the Victorian government organisations that must comply with the IPPs. The PDP Act does not typically treat particular organisations as exempt. Rather, the Act exempts from protection particular functions of organisations or specific categories of information they hold. Exempt acts and practices, and categories of information, fall outside the protection of some or all of the IPPs. The more significant exemptions are outlined below.
Judicial and quasi-judicial functions of courts and tribunals
Section 10 of the PDP Act exempts courts and tribunals from compliance with the IPPs or any protective data security standard in respect of the exercise of judicial or quasi-judicial functions. The IPPs will still apply to personal information collected for other court and tribunal functions, such as the maintenance of staff records, or general administrative matters.
‘Quasi-judicial’ means ‘court like’. It includes the actions of non-judicial bodies, such as administrative agencies, exercising their functions and powers in a judicial manner. In deciding whether an action or proceeding is ‘quasi-judicial’, various factors may be taken into account. These includes whether a proceeding’s purpose is to make a determination or finding concerning a matter, the truth of which is of public concern.
A statute which establishes a tribunal and regulates its procedures helps to determine whether a government body is a ‘tribunal’. A body does not need to be called a tribunal. Relevant factors in determining whether or not a body is a tribunal include whether provision is made for its proceedings, for the calling of witnesses and receiving evidence on oath, for public hearings, legal representation, and immunity of decision makers from suit. In addition, the relevant statute will often describe the tribunal’s initiating mechanisms and the legal consequences of its determinations.
A court registry’s handling of its case records and other documents filed by parties for the purposes of proceedings are likely to be matters which relate to judicial functions and therefore be exempt from obligations under the PDP Act.
‘Judicial power involves, as a general rule, a decision settling for the future a question between identified parties as to the existence of a right or an obligation. In this regard, the process is generally an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined.’
VCAT also found that even though the employees exercising the quasi-judicial function worked for a related body (not the BPB), it was deemed that the employees were exercising the functions of the BPB.
Section 11 of the PDP Act provides that nothing in the PDP Act, the IPPs or a protective data security standard applies in respect of the collection, holding, management, use, disclosure or transfer of personal information by a Parliamentary Committee in the course of carrying out its functions.
Section 10A of the PDP Act provides that nothing in the PDP Act, the IPPs or any data security standard applies in respect of the collection, holding, management, use, disclosure or transfer of information by a Royal Commission, a Board of Inquiry or a Formal Review for the purposes of, or in connection with, the performance of its functions.
Personal information in documents subject to the Freedom of Information Act
Section 14 states that nothing in IPP 6 applies to personal information contained in documents subject to the Freedom of Information Act 1982 (Vic) (FOI Act). Organisations subject to the FOI Act therefore do not need to comply with IPP 6.
For more information on the relationship between IPP 6 and the FOI Act, see the IPP 6 chapter of these Guidelines.
Law enforcement activities
Section 15 of the PDP Act provides that a law enforcement agency does not have to comply with IPPs 1.3 to 1.5, 2.1, 6.1 to 6.8, 7.1 to 7.4, 9.1 or 10.1 in certain circumstances. The law enforcement agency will not need to comply with these IPPs if it believes, on reasonable grounds, that non-compliance is reasonably necessary:
- for its own, or another law enforcement agency’s enforcement functions;
- for the enforcement of laws relating to the confiscation of the proceeds of crime;
- in connection with proceedings commenced in a court or tribunal; or
- in the case of Victoria Police, for the purposes of its community policing functions.
Certain bodies are defined in s 3 of the PDP Act as ‘law enforcement agencies’. They include, for example, a State police force and the Australian Federal Police, the Australian Crime Commission, the Commissioner of Corrections and the Business Licensing Authority. Also included in the definition are agencies whose function it is to:
- prevent, detect, investigate, or prosecute criminal offences or breaches of a law imposing a penalty or sanction for a breach;
- manage property seized under laws relating to confiscation of proceeds of crime;
- execute or implement an order or decision of a court or tribunal; or
- protect the public revenue under a law administered by the law enforcement agency.
Organisations seeking to rely on this exemption must believe, with a reasonable basis for that belief, that non-compliance with the IPPs listed in s 15 is necessary in the particular circumstances. This means that law enforcement agencies do need to consider and adhere to the IPPs, except where doing so is incompatible with their law enforcement functions.
In Zeqaj v Victoria Police (Human Rights)  VCAT 1733, Member Dea said:
‘the belief [that noncompliance is necessary] must not only be that the duty or task must be undertaken but that, in order to perform that duty or task, it is necessary not to first comply with the IPPs which would otherwise apply. The belief the noncompliance is necessary is linked not to the action [the law enforcement agency] intends to take, but to the IPPs would otherwise apply …
… in order for section 15 of the Privacy Act to apply, there must be evidence of a belief of the kind referred to having been formed’.10
For more information about this case, see Case Study 2S (under the ‘Disclosure to relevant persons and authorities’ section) in the IPP 2 chapter of these Guidelines.
Family Violence Protection Act
Section 15A of the PDP Act contains exemptions from complying with certain IPPs for the purposes of information sharing under the Family Violence Protection Act 2008 (FVP Act).
Information Sharing Entities (ISEs)11 and the Central Information Point (CIP)12 are exempt from complying with IPPs 1.4 and 1.5 when collecting personal information for the purposes of Part 5A of the FVP Act. Authorised Hub entities are not required to comply with IPPs 1.3, 1.4 and 1.5 when collection personal information for the purposes of Part 5B of the FVP Act.
The CIP is expressly exempt from IPP 6, meaning the CIP is not required to provide access to or correct personal information about an individual that the CIP has collected for the purposes of Part 5A of the FVP Act. (Part 5A relates to information sharing.) The CIP is designed to act as a conduit for information held by other ISEs, who are better placed to determine whether a request for access or correction could pose a risk of harm to victim survivors.
An ISE may refuse access to information under IPP 6 where a family violence risk has been established, if the individual making the request is a perpetrator or alleged perpetrator.13 This provides ISEs with a greater ability to ensure victim survivors are not unduly exposed to increased risk from perpetrators accessing information about them.14 See IPP 6.7 for more information about providing reasons for denying access or refusal to correct personal information.
In addition to the above exceptions from the IPPs under the scheme, the Victorian Data Sharing Act 2017 (Vic) makes an amendment to IPP 10.1(b), which allows entities to collect sensitive information where either authorised or required by law. In the context of family violence information sharing, this means that ISEs are not required to obtain consent from a perpetrator or alleged perpetrator before collecting sensitive information about them (such as criminal record information). ISEs are also not required to gain consent from any person before collecting sensitive information about them in relation to a child victim survivor.
For more information about information sharing under the FVP Act, refer to OVIC’s Family violence information sharing scheme and privacy law FAQs.
Child Wellbeing & Safety Act
Section 15B of the PDP Act contains exemptions from complying with certain IPPs for the purposes of information sharing under the Child Wellbeing and Safety Act 2005 (Vic) (CWS Act).
ISEs are exempt from collecting information directly from the relevant individual under IPP 1.4 for the purposes of Part 6A of the CWS Act, which relates to information sharing. Child Link users and the Secretary to the Department of Education and Training are also exempt from IPP 1.4 when collecting personal information for the purposes of Part 7A of the CWS Act, which relates to the Child Link Register.15 This means these entities are not required to collect personal information about a person directly from them, and can instead collect the information from another ISE.
ISEs are exempt from notifying individuals when personal information has been collected from another person under IPP 1.5 when collecting personal information for the purposes of Part 6A of the CWS Act, to the extent that compliance with IPP 1.5 would be contrary to the promotion of the wellbeing or safety of a child (to whom the information relates).16 This exemption removes the obligation on ISEs to take reasonable steps to notify individuals that their personal information has been collected from another ISE.
Child Link users or the Secretary of the Department of Education and Training are exempt from IPP 1.5 where personal information is collected for the purposes of Part 7A of the CWS Act.17 This exemption also removes the requirement of Child Link users or the Secretary to notify individuals of indirect collection, where providing notice would be contrary to the promotion of a child’s wellbeing or safety.
ISEs may refuse to disclose confidential information under IPP 6, where an individual has requested access to their personal information, if they believe on reasonable grounds that access to the information would result in an increased safety risk to children.18 See IPP 6.7 for more information about providing reasons for denying access or refusal to correct personal information.
ISEs are exempt from IPP 10.1 when collecting sensitive information under Part 6A of the CWS Act. Similarly, Child Link users or the Secretary to the Department of Education and Training are also exempt from IPP 10.1 when collecting sensitive information under Part 7A of the CWS Act.19 This means that sensitive information can be collected despite the restrictions under IPP 10.1.
When sharing information under Parts 6A and 7A of the CWS Act, the IPPs will not apply to the collection, use or disclosure of personal, sensitive or health information by an ISE, Clid Link user or the Secretary to the Department of Education and Training, to the extent that the IPPs require the consent of the person to whom the information relates.20 In practice, ISEs will not be required to obtain consent from any person prior to collecting information, including sensitive information under IPP 10.1, if they are sharing in accordance with the scheme.
It is important to note that the notice requirements under IPP 1.3 continues to apply to ISEs. When an ISE is collecting information directly from an individual, they are required to take reasonable steps to make the individual aware of particular matters at or before the time the information is collected, or as soon as practicable after.
For more information about information sharing under the CWS Act, refer to OVIC’s Child information sharing scheme and privacy law FAQs.
Section 12 of the PDP Act provides that nothing in the Act, the IPPs or a protective data security standard applies to personal information contained in a document that is:
- a generally available publication;
- kept in a library, gallery or museum for the purposes of reference, study or exhibition;
- a public record under the control of the Keeper of Public Records and available for public inspection in accordance with the Public Records Act 1973 (Vic); or
- archives within the meaning of the Copyright Act 1968 (Cth).
A generally available publication is defined in s 3 of the PDP Act as ‘a publication (whether in paper or electronic form) that is generally available to members of the public and includes information held on a public register’. Whether information that is publicly-available can be considered to be part of a ‘generally available publication’ will depend upon the context in which the information appears. In the case of online information, the following factors can help determine whether information is in a ‘generally available publication’:
- the nature of the information;
- the prominence of the web page on which it is located;
- the likelihood of access by members of the public; and
- the steps needed to obtain that access.21
In Jurecek v Director, Transport Safety Victoria,22 the Supreme Court of Victoria found that an individual’s Facebook ‘chats’ and ‘posts’ did not constitute a ‘generally available publication’, even though they could be accessed via Facebook by anybody. Justice Bell said:
‘That information, otherwise personal, might be accessible on some Facebook by anybody does not necessarily mean that the information is a generally available publication; equally, that information, otherwise personal, might be accessible somewhere on the Internet by anyone does not necessarily mean that the information is a generally available publication …
Mere publication of information on Facebook or the Internet does not, in my view, necessarily make it a ‘generally available publication’.23
Examples of ‘generally available publications’
Sentencing remarks published on Austlii’s website
In DNV v Department of Health and Human Services,24 the Tribunal considered whether sentencing remarks published on Austlii’s website (that included the complainant’s name) were exempt from the PDP Act. The Tribunal found that the name was contained in a ‘generally available publication’ at the time the complainant’s information was used and disclosed by Department. This finding was made despite subsequent pseudonymisation of the complainant’s name.
Public registers will usually be regarded as a ‘generally available publication’,25 and subject to this exemption. However, s 12 does not wholly exclude information contained in public registers from privacy protection. Section 20(2) provides that public sector agencies and councils administering public registers must, so far as is reasonably practicable, not do an act or engage in a practice that would contravene an IPP in respect of any personal information handled. Essentially, the PDP Act’s intention is for the IPPs to apply ‘so far as is reasonably practicable’ to personal information held on public registers. Such information is collected, often compulsorily, and held for particular purposes. The PDP Act recognises that while public register information should be able to be used for the legitimate purposes for which it is collected, unrelated uses (which are not permitted by the IPPs) are generally treated as interferences with privacy.
The PDP Act provides a number of mechanisms allowing organisations to depart from the IPPs, or to clarify their operation. The relevant mechanisms under the PDP Act are:
- Public Interest Determinations (PID);
- Temporary Public Interest Determinations (TPID);
- Information Usage Arrangements (IUA); and
- certification of an act or practice.
Public Interest Determination and Temporary Public Interest Determinations
A Public Interest Determination (PID) and a Temporary Public Interest Determination (TPID) are a written determination by the Information Commissioner, which permits an act or practice that would otherwise have been a breach of the IPPs, while the PID or TPID is in place.
Information Usage Agreements
It is anticipated that organisations will mostly seek approval of IUAs to allow personal information to be used or disclosed for a purpose or to entities that were not anticipated at the time the information was collected.
The Information Commissioner can certify that an act or practice is consistent with:
- an Information Privacy Principle;
- an approved code of practice; or
- an information handling provision.26
Certification of an act or practice means the organisation that does an act or engages in a practice in good faith in accordance with the certification does not contravene the relevant IPP, approved code of practice or information handling provision.27
For more detailed information on flexibility mechanisms, refer to the Guidelines to Public Interest Determinations, Temporary Public Interest Determinations, Information Usage Arrangements and Certification.
Please send any queries or suggested changes to email@example.com. We will respond to privacy enquiries and consider your suggestions when we next update the Guidelines to the Information Privacy Principles.
Version control table
|Overview 2019.B||Edits following consultation.||14 November 2019|
|Overview 2019.A||Consultation draft.||1 August 2019|
|Overview (2011)||2011 pdf version.||2011|
- PDP Act, s 8C(1)(g).
- See also: Guidelines for outsourcing in the Victorian public sector Accompanying guide, OVIC, May 2017.
- PDP Act, s 5.
- Section 17(2) is a provision which binds the service provider in its contracted obligations to behave as if it were bound by the IPPs and any applicable code of practice in the way that the State party would have been bound.
- PDP Act, s 20.
- PDP Act, s 13; Public Administration Act 2004 (Vic) s 5.
- Interpretation of Legislation Act 1984 (Vic) s 38.
- R v Debono  VSC 350 , citing R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 374.
- Harrison v Victorian Building Authority (Human Rights)  VCAT 1791 .
- Zeqaj v Victoria Police (Human Rights)  VCAT 1733 (20 November 2018) -.
- An ISE is defined under section 144D of the Family Violence Protection Act 2008 (Vic) (FVP Act) to be a person or body prescribed, or a class of person or body prescribed, to be an information sharing entity.
- The CIP is a secure statewide service that collates information relevant to family violence risk assessment and risk management.
- FVP Act, s144QA.
- Where it is safe to do so, an ISE may grant a request for access or correction under IPP 6 from a perpetrator (for example, where a person has been incorrectly identified as a perpetrator of family violence and wishes to correct any records accordingly). Where a perpetrator has been incorrectly identified and does not present a risk of committing family violence, their rights of access and correction will be the same as for any other person under the scheme.
- See s 46B of the CWS Act for further information about the Child Link Register. A Child Link User is a person who is authorised to access the Child Link Register as specified in Part 7A of the CWS Act.
- PDP Act, s 15B(2).
- PDP Act, s 15B(3).
- CWS Act, s 41ZF.
- PDP Act, s 15B(4).
- PDP Act, s 15B(5).
- Jurecek v Director, Transport Safety Victoria  VSC 285,  (Bell J). This case was specifically concerned with information on a website (Facebook).
- Jurecek v Director, Transport Safety Victoria  VSC 285.
- Jurecek v Director, Transport Safety Victoria  VCS 285 ,  (Bell J).
- DNV v Department of Health and Human Services (Human Rights)  VCAT 1569
- Taylor v Victorian Institute of Teaching (Human Rights)  VCAT 1290.
- PDP Act, s 55.
- PDP Act, s 55(4).