Privacy and Personal Information Protection Act 1998 No 133
Current version for 4 July 2014 to date (accessed 22 November 2014 at 03:25)
Part 1

Part 1 Preliminary

1   Name of Act

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

2   Commencement

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

3   Definitions

(1)  In this Act:

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.

exercise a function includes perform a duty.

function includes a power, authority or duty.

Information Commissioner means the Information Commissioner under the Government Information (Information Commissioner) Act 2009.

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

investigative agency means any of the following:

(a)  the Ombudsman’s Office,
(b)  the Independent Commission Against Corruption,
(b1)  the Inspector of the Independent Commission Against Corruption,
(c)  the Police Integrity Commission,
(c1)  the Inspector of the Police Integrity Commission and any staff of the Inspector,
(d)  (Repealed)
(e)  the Health Care Complaints Commission,
(f)  the office of Legal Services Commissioner,
(g)  a person or body prescribed by the regulations for the purposes of this definition.

law enforcement agency means any of the following:

(a)  the NSW Police Force, or the police force of another State or a Territory,
(b)  the New South Wales Crime Commission,
(c)  the Australian Federal Police,
(d)  the Australian Crime Commission,
(e)  the Director of Public Prosecutions of New South Wales, of another State or a Territory, or of the Commonwealth,
(f)  the Department of Corrective Services,
(g)  the Department of Juvenile Justice,
(g1)  the Office of the Sheriff of New South Wales,
(h)  a person or body prescribed by the regulations for the purposes of this definition.

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

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)  a Public Service agency or the Teaching Service,
(a1)  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,
(b)  a statutory body representing the Crown,
(c)  (Repealed)
(d)  a person or body in relation to whom, or to whose functions, an account is kept of administration or working expenses, if the account:
(i)  is part of the accounts prepared under the Public Finance and Audit Act 1983, or
(ii)  is required by or under any Act to be audited by the Auditor-General, or
(iii)  is an account with respect to which the Auditor-General has powers under any law, or
(iv)  is an account with respect to which the Auditor-General may exercise powers under a law relating to the audit of accounts if requested to do so by a Minister of the Crown,
(e)  the NSW Police Force,
(e1)  (Repealed)
(f)  a local government authority,
(g)  a person or body that:
(i)  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)–(f) of this definition, or that receives funding from any such body in connection with providing data services, and
(ii)  is prescribed by the regulations for the purposes of this definition,
but does not include a State owned corporation.
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)  a person appointed by the Governor, or a Minister, to a statutory office,
(b)  a judicial officer within the meaning of the Judicial Officers Act 1986,
(c)  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,
(c1)  a person employed by a political office holder under Part 2 of the Members of Parliament Staff Act 2013,
(c2)  a person employed by a member of Parliament under Part 3 of the Members of Parliament Staff Act 2013,
(d)  a local government councillor or a person employed by a local government authority,
(e)  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,
(f)  a person who is employed or engaged by:
(i)  a public sector agency, or
(ii)  a person referred to in paragraph (a)–(e),
(g)  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:

(a)  any staff employed under section 57E (1) or (2) of the Independent Commission Against Corruption Act 1988, and
(b)  any consultants engaged under section 57E (3) of that Act.

staff of the Inspector of the Police Integrity Commission means:

(a)  any staff employed under section 92 (1) or (2) of the Police Integrity Commission Act 1996, and
(b)  any consultants engaged under section 92 (3) of that Act.

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

Tribunal means the Civil and Administrative Tribunal.

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

4   Definition of “personal information”

(1)  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.
(2)  Personal information includes such things as an individual’s fingerprints, retina prints, body samples or genetic characteristics.
(3)  Personal information does not include any of the following:
(a)  information about an individual who has been dead for more than 30 years,
(b)  information about an individual that is contained in a publicly available publication,
(c)  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,
(d)  information about an individual arising out of a warrant issued under the Telecommunications (Interception) Act 1979 of the Commonwealth,
(e)  information about an individual that is contained in a public interest disclosure within the meaning of the Public Interest Disclosures Act 1994, or that has been collected in the course of an investigation arising out of a public interest disclosure,
(f)  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,
(g)  information about an individual arising out of a Royal Commission or Special Commission of Inquiry,
(h)  information about an individual arising out of a complaint made under Part 8A of the Police Act 1990,
(i)  information about an individual that is contained in Cabinet information or Executive Council information under the Government Information (Public Access) Act 2009,
(j)  information or an opinion about an individual’s suitability for appointment or employment as a public sector official,
(ja)  information about an individual that is obtained about an individual under Chapter 8 (Adoption information) of the Adoption Act 2000,
(k)  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.
(4)  For the purposes of this Act, personal information is held by a public sector agency if:
(a)  the agency is in possession or control of the information, or
(b)  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
(c)  the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998.
(5)  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.

4A   Exclusion of health information from definition of “personal information”

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.

4B   Regulations may declare whether agency is part of or separate from a public sector agency

(1)  The regulations may declare that:
(a)  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
(b)  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.
(2)  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.
(3)  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.

5   Government Information (Public Access) Act 2009 not affected

(1)  Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009.
(2)  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.

6   Courts, tribunals and Royal Commissions not affected

(1)  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.
(2)  Nothing in this Act affects the manner in which a Royal Commission, or any Special Commission of Inquiry, exercises the Commission’s functions.
(3)  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:
(a)  in relation to a Magistrate—such of the functions of the Magistrate as relate to the conduct of committal proceedings, and
(b)  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.

7   Crown bound by Act

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.
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