Mandatory Data Breach Reporting Bill Introduced Into Parliament

by K&L Gates LLP

The Privacy Amendment (Privacy Alerts) Bill 2013 was introduced into Parliament on 29 May 2013.  Having been recommended by the Senate Committee report tabled on 24 June, it appears that Parliament intends to pass the Bill before the winter break despite concerns from industry about the Bill and the rushed consultation process. If passed, the Bill introduces mandatory data breach notification provisions for agencies and organisations (entities) that are regulated by the Privacy Act 1988 (Privacy Act) and will commence on the same day that the operative provisions of the Privacy Amendment (Enhancing Privacy Protection) Act 2012 commence (12 March 2014).

From 12 March 2014, failure to comply with the mandatory breach reporting regime may result in enforcement action by the Privacy Commissioner. The Commissioner may, among other things, conduct investigations, make determinations and obtain enforceable undertakings from an entity. In situations of serious or repeated noncompliance, the Privacy Commissioner may also apply for civil penalties of up to AUD1.7 million for corporations and AUD340,000 for individuals. Now that breach reporting is a compulsory requirement, data breaches will potentially impact on your reputation and brand name.

What is Mandatory Breach Reporting?

Under the mandatory data breach notification framework, an entity must notify the Australian Information Commissioner and individuals (or in some circumstances the general public by publication on its website and a newspaper circulating in each state) of serious data breaches that significantly affect an individual as soon as practicable.

What is a Serious Data Breach?

A serious data breach includes the unauthorised access to or disclosure of personal information that will result in a real risk of serious harm to an individual that the personal information relates to. A prominent example of this is when an entity's systems have been hacked into but may also include inadvertent disclosures of personal information, for example, lost or stolen electronic devices such as laptops or mobile phones, removable storage devices or paper records containing personal information. However, minor data breaches will not need to be reported.

In addition, future regulations may stipulate other circumstances that may constitute a serious data breach.

What is Serious Harm?

Serious harm may include physical and psychological harm to an individual as well as injury to feelings, humiliation, harm to reputation and financial or economic harm1. Prior to reporting, entities need to assess whether the risk of harm is real and not too remote.

Notice to Commissioner and Individuals

The Bill will make it compulsory to report serious data breaches to the Privacy Commissioner and affected individuals. The notice provided to the Australian Information Commissioner and individuals must include the following information:

  • the identity and contact details of the entity
  • a description of the serious data breach that the entity believes has happened
  • the kinds of information concerned
  • recommendations about the steps that individuals should take in response to the serious data breach
  • any additional information specified by regulations.

Rationale for Mandatory Breach Reporting

Data breach notification allows individuals that have been affected by a breach to take steps to reduce the impact of data breaches, for example, by changing passwords or notifying their financial institutions.

Currently, entities may report data breaches to the Australian Information Commissioner and affected individuals voluntarily under the voluntary breach reporting framework. The Australian Information Commissioner has issued a guide (Data breach notification: A guide to handling personal information security breaches) in relation to this. However, there is currently no requirement under the Privacy Act to notify the Australian Information Commissioner or any other individual in the event of a data breach. In the 2011-2012 financial year, under the current voluntary breach reporting framework, 46 data breaches were reported. This represents a decrease of 18%2 from the previous financial year despite a general belief that breach incidents are increasing, entities are holding larger amounts of personal information and hacking incidents are increasing3.

What Should You Do?

You should ensure that you are prepared for mandatory breach reporting by taking the steps below.

  • Creating a breach reporting policy. The policy should include processes for identifying data breaches, timeframes for actioning privacy breach responses and notification procedures.
  • Training appropriate staff. Staff should be trained in identifying data breaches, reducing the impact of data breaches and reporting data breaches.
  • Identification of risks. It may also be prudent to identify any potential risks and vulnerabilities within your business to data breaches.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© K&L Gates LLP | Attorney Advertising

Written by:

K&L Gates LLP

K&L Gates LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.