This case note has been taken from the recently published second-edition of a Guide to ACT Strata Law. A physical copy of the full text can be purchased here.
Why is privacy an issue? We live in the age of information technology. Terms like ‘Big Data’ and ‘Data Mining’ are bandied around constantly but what do they mean and how do they affect us? And more pertinently, how do they affect strata schemes?
Big Data is a term used to describe ‘data sets’ so large or complex that their analysis can find correlations to spot business trends, prevent diseases, combat crime and so on. Indeed, data sets can become so large because, increasingly, they are being gathered by cheap and numerous information-sensing mobile devices, aerial devices (such as remote sensing), software logs, cameras, microphones, radio-frequency identification readers and wireless sensor networks. The world’s technological per-capita capacity to store information has roughly doubled every 40 months since the 1980s.
The scale of these data sets is staggering. Facebook handles 50 billion photos from its user base. As of August 2012, Google was handling roughly 100 billion searches per month. Walmart handles more than 1 million customer transactions every hour, which are imported into databases estimated to contain more than 2.5 petabytes (2 560 terabytes) of data – the equivalent of 167 times the information contained in all the books in the US Library of Congress.
It is due to the above technological developments that privacy legislation has become so critical. The advent of ‘Data Mining’, in particular, enables the analysis of large quantities of data to extract previously unknown but interesting patterns.
Consequently, in order to prevent large and well-funded organisations from exploiting information gathered from individuals for purposes other than the direct purpose for which the information was gathered, the Australian Parliament passed the Privacy Act 1988 (Cth).
Application of the Privacy Act 1988 (Cth) to strata. The Privacy Act regulates the handling, storage, use and disclosure of personal information by the Commonwealth Government, its agencies and private organisations, which are referred to as APP entities. An APP entity is defined to be an agency or organisation. State and Territory privacy laws apply to State and Territory governments and local government/councils.
The Privacy Act does not:
(a) assist with allegations of peeping, prying or breaches of privacy due to nosey neighbours (there are other remedies for this behaviour); or
(b) replace laws protecting ‘confidential information’, including statutory, contractual and equitable obligations for the protection and non-disclosure of confidential information.
Schedule 1 of the Privacy Act contains the thirteen Australian Privacy Principles (which on 12 March 2014 replaced the National Privacy Principles (NPPs for the private sector) and the Information Privacy Principles (IPPs for government agencies)). The Australian Privacy Principles outline how most Australian Government agencies, private sector and not-for-profit organisations with an annual turnover of more than $3 million, all private health services providers and some small businesses (collectively known as APP entities) must handle, use and manage personal information.
An APP entity must not do an act, or engage in a practice, that breaches an Australian Privacy Principle.
Under the Privacy Act an organisation is defined to include a body corporate unless it is a small business operator, registered political party, State or Territory authority or a prescribed instrumentality of a State. A small business operator is defined as an individual, body corporate, partnership, unincorporated association or trust that has an annual turnover of $3 million or less for a financial year unless an exception applies.
From the above, the first question is, will the Privacy Act apply to an owners corporation or strata management company?
The use of the words “annual turnover” does not have a ready application to owners corporations given those words do not appear anywhere in the Unit Titles (Management) Act 2011 (UTMA) or the Unit Titles (Management) Regulation 2011 (UTMR). Indeed, the word is invariably linked with business, rather than strata, entities. However, setting this issue aside, few, if any, owners corporations in the ACT will have an income of more than $3 million per annum and therefore it is highly unlikely that the Privacy Act will apply to any owners corporations in the ACT for this reason. For an owners corporation to have more than $3 million in turnover every year, a building of 300 units would need to levy on average more than $10 000 per unit. Given only the most expensive apartments in the ACT (valued at $2 million or more) might have levies which exceed $10 000 per annum, it is highly unlikely that any owners corporations in the ACT would levy $3 million per annum.
Turning to strata managers, many of the smaller strata managers in the ACT would not have a turnover of more than $3 million and therefore the Privacy Act would not prima facie apply to them.
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.
