The Privacy Act 1988 (Cth) has far-reaching consequences for landlords in dealing with existing and prospective tenants. Individuals, corporate bodies, partnerships, and any other unincorporated associations or trusts with an annual turnover of more than A$3 million are defined as 'organizations' under Section 6C of the act.
Landlord organizations must comply with the national privacy principles (NPPs) in Schedule 3 of the act when handling the personal information of existing and prospective tenants. The act defines 'personal information' as "information...about an individual whose identity is apparent, or can reasonably be ascertained, from the information". Information about prospective tenants in tenancy agreements (ie, documents summarizing the commercial conditions of the tenancy) includes the name, address and contact details of the tenant, as well as financial and guarantor details. NPP 1 obliges landlords to inform tenants of the following at or before the time the personal information is collected:
- the reason why the information is being collected;
- the organizations or types of organization to which the information is likely to be disclosed;
- the tenant's right to access the information;
- the identity of the collecting organization and how to contact it; and
- the main consequences (if any) for the individual if all or part of the information is not provided.
Uncertainty exists as to whether Section 8(1)(a) of the act applies to agents. The section provides that:
"an act done or practice engaged in by, or information disclosed to, a person employed by, or in the service of, an...organization...in the performance of the duties of the person's employment shall be treated as having been done or engaged in by, or disclosed to, the...organization."
The Commonwealth privacy commissioner has determined that the application of Section 8 does not include agents (eg, property managers and consultants). However, this exemption is qualified where there is "a particularly close relationship" between organizations and agents, deeming actions of agents in handling personal information as the actions of landlords. The commissioner has given no further explanation as to the meaning of "particularly close relationship" or when agents will be considered to be acting "in the service of" organizations for the purposes of Section 8. It has been argued that, for the purpose of the act, actions by agents of organizations should be treated as actions of organizations.
Alternatively, the functions of property managers and consultants may be caught by Section 6D(4)(c) or (d) of the act, which deem that agents classed as organizations must comply with the NPPs where they engage in collecting and disclosing tenants' personal information on behalf of landlords for the benefit, service or advantage of landlords. In light of the existing ambiguity in the privacy regime, prudent landlords and agents should ensure that tenants' personal information is dealt with on the basis that each has a statutory obligation to comply with the act.
For further information on this topic please contact Katerina Petrogiannakis or Toby Mittelman at Arnold Bloch Leibler by telephone (+61 3 9229 9779) or by fax (+61 3 9229 9889) or by email ([email protected] or [email protected]).