How do the Australian Privacy Principles impact the real estate industry in Australia?

As of March 12 2014, significant changes to Australian privacy laws were implemented, placing higher and more stringent standards on the collection, use and disclosure of identity information. The new Australian Privacy Principles (APPs) will, arguably, have the most notable impact on the real estate industry, affecting its capacity for direct marketing to consumers, and introducing huge penalties for violations of these principles. It’s worth noting, however, that these reforms won’t affect small businesses with an annual turnover of $3 million or less.

Along with tightened regulations on the use of personal information, the Office of the Australian Information Commissioner has renewed enforcement powers to address failures of agencies to adjust accordingly to these amendments.

What areas of the real estate industry do these new laws affect?

The changes to privacy laws in Australia will affect most aspects of the real estate industry practices, some of which include:

• The requirement to establish or update privacy policies so that they comply with the APPs;
• The obligation on businesses to limit the storage of personal information to what is reasonably necessary for their genuine purposes and functions, and only use and disclose that data if it is relevant to those purposes;
• Enhanced regulations on how this personal information will be used for direct marketing;
• More rigorous duties for disclosure of private information to overseas entities, such as making efforts to ensure compliance by that entity with the APPs; and
• The requirement to ensure the security of all personal information, both in an electronic database and in hard copy.

If you place an application to lease a property online or at an open-house inspection, the agent will, ordinarily, request copies of certain documents. These can include your passport, Medicare card, Australian Citizenship certificate, birth certificate or driver’s licence.

Under the new APPs, the agent is only allowed to ask for documents that are reasonably necessary for carrying out the functions of the agency. This means, for the most part, that they are not allowed to simply collect documents that may be necessary for some upcoming activity of the agency.

In fact, under these new laws, the agent is required to notify you of information regarding the following:

• Their reasons for the collection of personal information;
• The repercussions, if any, of not providing personal information;
• Where, and to whom, the information will go;
• The way(s) by which you can gain access to any personal information collected; and
• The way(s) by which you can formalise a complaint against the agency for misuse of personal information.

Do I have to provide all government related documents?

All government documents, State and Federal, normally contain a unique number which identifies you. This can be your Medicare number, Centrelink reference number, driver’s licence number, and so on. These government related identifiers fall under the Privacy Act 1988, which allows agents to make use of these numbers, provided their use is reasonably necessary for their functions or activities. In terms of disclosure, the agent cannot share this information. If the agent, for some reason, needs to use or share these documents, they are obligated to erase the number.

A practical example may be the use of a driver’s licence, which may contain health information, such as your donor status. These details are considered ‘sensitive’ under the Privacy Act, which gives a potential buyer or lessee the right to erase this kind of health-related information.

When is disclosure of my personal information allowed?

To lawfully share your personal information, a real estate agent, bound by the provisions of the Privacy Act, must do so for the main reason they collected it. This is sometimes referred to as the primary purpose. In this case, they will not need to get your consent.

For instance, the agency may gather your information to assess your prospects as a potential tenant. If this is the case, they can share the fact that you want to become the tenant of the property with the landlord, your last agent (when they are a reference), the residential tenancy database operator and anyone else you may have listed as a reference.

What information are real estate agents not allowed to request?

Real estate agents covered by the Privacy Act must only collect information that is necessary for the primary purpose of that collection, in this case, to assess your application as a potential tenant of the premises. When requesting personal information from prospective buyers and/or renters, the purpose must be necessary for the Agency’s functions or activities, and must only be undertaken in a lawful and fair manner that is not unreasonably intrusive.

Insofar as what constitutes personal information that is necessary, generally speaking, agents aren’t permitted to store ‘sensitive’ information, such as your health status, ethnicity, religion, gender or sexual preference.

Conclusion

Remember, if you’re receiving direct advertising from a real estate agent who has collected your details in the past, it is possible, provided they’re covered by the amended Privacy Act provision, that they’re misusing your personal information by doing so. For further legal advice regarding your rights under the Privacy Act, contact LegalVision on 1300 544 755.