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  • Writer's pictureNicholas Rose

The Mandatory Notifiable Data Breach Amendments and Local Government Privacy Compliance

Key Changes and Practical Recommendations

As NSW local governments prepare to navigate the upcoming mandatory data breach notification (MNDB) requirements, it is crucial to provide valuable insights and practical recommendations to support their privacy compliance efforts. In this article, we give an overview of the changes introduced by the Privacy and Personal Information Protection Amendment Bill 2022, addressing concerns faced by local councils. Our objective is to equip governance and generalist legal professionals in the local government sector with the knowledge and tools necessary to ensure effective privacy practices.

Analysis of the Privacy and Personal Information Protection Amendment Bill 2022:

The Privacy and Personal Information Protection Amendment Bill 2022 introduces significant changes to privacy management in local government organisations. Here are the key aspects of the bill and its implications for privacy compliance within local councils:

1. Mandatory Data Breach Notification (MNDB) Scheme:

  • Requires local councils to report suspected data breaches promptly.

  • Emphasises the need to contain breaches and assess the potential harm to impacted individuals.

  • Mandates notification to the NSW Privacy Commissioner and affected individuals in case of serious harm.

  • Allows for public notification if identifying impacted individuals is not practical.

2. Governance Requirements:

  • Obliges local councils to prepare and publish a data breach management policy.

  • Requires the maintenance of a register of breach notifications and an internal register of eligible data breaches.

  • Involves updating Privacy Management Plans to include MNDB scheme obligations.

3. Enhanced Regulatory Powers:

  • Grants the NSW Privacy Commissioner increased powers to enforce the MNDB scheme.

  • Enables the Commissioner to investigate, monitor, audit, and report on agency functions under the scheme.

4. Expansion of Public Sector Agency Definition:

  • Brings state-owned corporations (SOCs) not regulated by the Commonwealth Privacy Act 1988 (Cth) under the PPIP Act.

  • Requires affected SOCs to comply with the PPIP Act and the MNDB scheme.

5. Alignment with Commonwealth NDB Scheme:

  • The MNDB scheme adopts key features of the existing Commonwealth Notifiable Data Breaches (NDB) scheme.

  • Ensures consistency in terms of timing and assessment thresholds.

  • Limits potential overlap by requiring dual notification only in specific circumstances (e.g., compromise of Tax File Numbers).

It is crucial for local councils to ensure effective privacy compliance within their organisations. By familiarising themselves with the provisions and implications of the new amendments, councils can proactively adapt their practices and policies to meet the evolving privacy requirements. Time and time again NSW Civil and Administrative Tribunal Members have shown zero sympathy for local governments that do not meet compliance requirements.

Practical Recommendations for Strengthening Privacy Practices:

Do not fall into the trap of assuming that the template policies and plans provided by the Department of Premier and Cabinet are sufficient to ensure privacy compliance in local government. Here are some actionable steps that councils can readily implement to enhance their privacy compliance efforts:

  1. Develop Data Breach Response Plans: Create comprehensive data breach response plans that outline the necessary procedures to be followed in the event of a suspected breach. These plans will help facilitate prompt and effective responses, including the assessment of harm and notification processes. You have until November 2023 to do it!

  2. Conduct Privacy Impact Assessments: Regularly conduct privacy impact assessments to identify and mitigate privacy risks within your council. These assessments provide valuable insights into potential vulnerabilities and enable proactive measures to safeguard personal information.

  3. Implement Robust Privacy Policies: Review and strengthen your council's privacy policies to align with the new requirements. Ensure that the policies cover key areas such as data collection (and importantly notice!), storage, access, and sharing, while emphasising the importance of protecting individuals' privacy rights.

  4. Foster a Culture of Privacy Awareness: Promote privacy awareness and education among staff members through training initiatives. By providing comprehensive training on privacy regulations, data handling practices, and data breach response protocols, you can empower your team to actively contribute to privacy compliance efforts.

  5. Seek Professional Guidance: Consider engaging with privacy experts or legal professionals who specialise in privacy compliance for local government organisations. They can provide tailored guidance and support, ensuring your council meets the necessary privacy requirements and addresses any compliance gaps.

As local government organisations prepare for the MNDB requirements, it is essential to prioritise privacy compliance and ensure the protection of individuals' personal information. By understanding the key changes introduced by the Privacy and Personal Information Protection Amendment Bill 2022 and implementing our practical recommendations, local councils can establish robust privacy practices.

And always keep in mind that privacy is about transparency with information handling practices in order to foster trust in your organisation. It is not just about security and non-disclosure.

Next Steps

Jenkins Legal and Advisory is a Local Government Tender Panel firm with specific privacy expertise. We believe our role is to partner with local government bodies to ensure continued compliance, training, and improvement in all areas of privacy regulation, not just charge for templates and policy forms. Even if you are unsure about what assistance you might need, contact our office today to discuss how we might help.

This article is not legal advice, and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.



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