Australia Updates Breach Notification Guide; Notice Strongly Recommended, Not Required

Aug. 27 — The Office of the Australian Information Commissioner recently revised its guidance on data breach notification to account for amendments to the nation's framework privacy law that took effect in March.

The guide's four recommended steps for responding to a large-scale data breach include: containing the breach and conducting a preliminary assessment; evaluating the risks associated with the breach; notifying affected individuals if the breach “creates a real risk of serious harm to the individual”; and preventing future breaches. The guide, which was updated Aug. 26, also emphasizes the importance of taking preventive information security measures.

Changes to the Privacy Act 1988 included a harmonized suite of 13 Australian Privacy Principles that replaced separate sets of principles for companies and government agencies. Those amendments took effect March 12.

The amendments, however, didn't include mandatory data breach notification as recommended by the Australian Law Reform Commission in its 2008 review of the nation's privacy law. The government said at the time that mandatory data breach notification would be dealt with in subsequent legislation.

The OAIC said in the revised guidance that it “strongly supports” the recommendation for mandatory data breach notification.

“Accordingly, this guide is aimed, in part, at encouraging agencies and organisations to voluntarily put in place reasonable measures to deal with data breaches (including notification of affected individuals and the OAIC), while legislative change is considered by the Government,” the guide said.

Compliance Recommended, Not Mandatory

The OAIC first drafted voluntary data breach notification guidelines in 2008. The OAIC revised the guidance in 2011.

The OAIC said that the guidelines aren't limited to breaches of the Australian Privacy Principles; nor is compliance with the guide required.

“While establishing appropriate thresholds and processes for data breach notification is good privacy practice, the steps and actions outlined in this guide are not specifically required under the Privacy Act,” the guide said. “Therefore, while the OAIC strongly recommends compliance with this guide, compliance is not mandatory.”

Breach Notice Bill Pending

Meanwhile, legislation introduced March 20 in the Australian Senate that would require breach notification remains pending. The last major action on the bill was a debate in June, according to the Australian Parliament's website.

The Privacy Amendment (Privacy Alerts) Bill 2014 would amend the Privacy Act to require companies, organizations and government agencies to notify the OAIC and affected individuals of personal data breaches.

Like the recently updated guide, the bill includes a risk of harm trigger to limit notice to breaches that pose a “real risk of serious harm to the individual.”

In June 2013, the previous attempt to move from the voluntary guidelines to a mandatory breach notice law stalled in Parliament.

The “Data breach notification guide: A guide to handling personal information security breaches” is available at