Section 26WE — Privacy Act 1988 (Cth)

Scope

(1) This section applies if:

(a) both:

(i) an APP entity holds personal information relating to one or more individuals; and

(ii) the APP entity is required under section 15 not to do an act, or engage in a practice, that breaches Australian Privacy Principle 11.1 in relation to the personal information; or

(b) both:

(i) a credit reporting body holds credit reporting information relating to one or more individuals; and

(ii) the credit reporting body is required to comply with section 20Q in relation to the credit reporting information; or

(c) both:

(i) a credit provider holds credit eligibility information relating to one or more individuals; and

(ii) the credit provider is required to comply with subsection 21S(1) in relation to the credit eligibility information; or

(d) both:

(i) a file number recipient holds tax file number information relating to one or more individuals; and

(ii) the file number recipient is required under section 18 not to do an act, or engage in a practice, that breaches a section 17 rule that relates to the tax file number information.

Eligible data breach

(2) For the purposes of this Act, if:

(a) both of the following conditions are satisfied:

(i) there is unauthorised access to, or unauthorised disclosure of, the information;

(ii) a reasonable person would conclude that the access or disclosure would be likely to result in serious harm to any of the individuals to whom the information relates; or

(b) the information is lost in circumstances where:

(i) unauthorised access to, or unauthorised disclosure of, the information is likely to occur; and

(ii) assuming that unauthorised access to, or unauthorised disclosure of, the information were to occur, a reasonable person would conclude that the access or disclosure would be likely to result in serious harm to any of the individuals to whom the information relates;

then:

(c) the access or disclosure covered by paragraph (a), or the loss covered by paragraph (b), is an eligible data breach of the APP entity, credit reporting body, credit provider or file number recipient, as the case may be; and

(d) an individual covered by subparagraph (a)(ii) or (b)(ii) is at risk from the eligible data breach.

(3) Subsection (2) has effect subject to section 26WF.

Related sections

• s 26WB — Entity
• s 26WC — Deemed holding of information
• s 26WD — Exception—notification under the My Health Records Act 2012
• s 26WF — Exception—remedial action
• s 26WG — Whether access or disclosure would be likely, or would not be likely, to result in serious harm—relevant matters
• s 26WH — Assessment of suspected eligible data breach

Research how courts apply s 26WE

BriefBridge searches Australian caselaw by meaning — every answer cited to the paragraph.