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Privacy Act & codes

Personal information shall not be collected by an agency -
(a) by unlawful means; or
(b) by means that, in the circumstances of the case -

(i) are unfair; or
(ii) intrude to an unreasonable extent upon the personal affairs of the individual concerned.

When an agency collects information about a person, it has to do it in a way that's fair and legal.

Principle 4 governs how information is collected (as distinct from what information is being collected, or why).

It stops agencies from collecting information in a way that is:

  • unlawful;
  • unfair; or
  • unreasonably intrusive.

When is a method of collection 'unlawful'?
If you breach an Act of Parliament when collecting information then you have collected unlawfully.

Some means of collecting information are specifically prohibited. For example, it's an offence to record a phone conversation unless you're a party to the conversation.

Collection might also be unlawful if the conduct of the person or agency collecting the information breaks a law. For example, collecting information while trespassing may be an unlawful means of collection.

Where an agency has relied on an unlawful action to help it collect information, that collection is a likely breach of principle 4.

See Case note 5421 - unlawful
      Case note 3734 - unlawful

When is a method of collection 'unfair'?
What is 'fair' depends a lot on the circumstances. Threatening or coercive behaviour is particularly likely to be considered unfair.

Misleading behaviour can also be unfair, but this will depend a bit more on the context. Agencies which have an investigative function are sometimes accused of collecting information about people unfairly by misleading them. This is because it can be impractical to obtain information openly, without prejudicing the investigation.

Whether misleading someone is unfair will depend on a number of factors, including:

  • the purpose for which information is being collected;
  • the extent to which the individual was misled;
  • the duration of the deception; and
  • the advantage that the agency gained by misleading the person. For instance, did the deception allow the agency to obtain far more information than would have been available without it?

See Case note 0632 - not unfair or unreasonably intrusive
      Case note 14824 - unfair
      Case note 24242 - not unfair
      Case note 6314 - not unfair
      Case note 11536 - unfair

When is a method of collection 'unreasonably intrusive'?
What is 'reasonable' also depends on the circumstances. Relevant factors include:

  • the purpose for which information is being collected;
  • the degree to which the collection intrudes on privacy. For instance, was the information highly sensitive? or was more information collected than was necessary to achieve the intended purpose? 
  • the circumstances in which the information was collected. For instance, was it collected at a place or time when the individual would have a stronger or weaker expectation of privacy?

Covert surveillance and monitoring often raise questions about whether information is being collected by unreasonably intrusive means.

See Case note 0632 - not unfair or unreasonably intrusive
      Case note 43927 - not unreasonably intrusive
      Case note 38463 - not unreasonably intrusive
      Case note 32277 - not unreasonable intrusive

I'm an employer - is it okay to set up CCTV cameras in the public areas in my workplace?
Yes, probably. But there are a number of things to think about before installing cameras. You should be clear about why you want video cameras. Do you want to detect or prevent theft or to help keep staff safe from customers?

You should have a clear policy that outlines your purpose for having CCTV cameras and includes details such as where the cameras will be, whether they will be fixed or rotating, whether sound recording will be used, and how long the footage will be retained for.

You should make both staff and the public aware that video cameras are operating by displaying signs.

See guidance for CCTV.

Can an agency ask me a lot of lot of questions that make me uncomfortable or that I don't want to answer?
Perhaps. Whether questioning is unreasonably intrusive will depend on the circumstances. It's important that the agency asking you the questions has a lawful purpose for collecting this information about you. It should have explained that purpose to you. The agency should also tell you whether or not you have to answer the questions, and what will happen if you don't. For example, if you don't provide this information you will miss out on a benefit or award.

The collection is likely to be unfair if someone threatens you into giving the information to them.

Is my employer allowed to secretly film me at work?
It depends. Ordinarily, if video cameras are operating an employer should make sure that staff are aware them. Covert filming is usually unfair. But, occasionally there are reasons why an employer may use covert surveillance. Most commonly this would be because something such as theft or drug use is suspected in the workplace.

If covert surveillance is used, an employer should make sure that it collects the minimum footage necessary to achieve its purpose.

Some relevant factors in deciding whether the surveillance is unfair or unreasonably intrusive include:

  • the purpose for recording the employees;
  • the amount of information collected. For instance, whether the camera used was stationary or rotating, and whether audio recording was also used;
  • how long the recording took place. Long term covert surveillance is unlikely to be appropriate; and
  • where the video cameras were operating. It's much less appropriate to film people in areas where they have a high expectation of privacy such as toilets or changing areas.

I'm applying for assistance from a government department and feel upset about the questions on the application form as they seem very invasive. Do I have to answer them?
Possibly. In general, an application form or questionnaire is unlikely to be an unfair or unreasonably intrusive way of collecting information. This is because it's a transparent means of collection. The person filling in the form knows that the department is collecting information and exactly what information it's collecting.

If the department is asking for excessive information or not explaining properly what it requires the information for or how it will be used, then the application form may raise issues under principle 1 or principle 3.