Privacy Act 1988

PART VIB - COMPLIANCE AND ENFORCEMENT  

Division 1B - Compliance notices  

SECTION 80UC   COMPLIANCE NOTICES  

Giving a compliance notice

80UC(1)    
Any of the following persons may give an entity a notice if the person reasonably believes that the entity has contravened subsection 13K(1) or (2) (civil penalty provision for which infringement notices or compliance notices can be issued):

(a)    the Commissioner;

(b)    a member of the staff of the Commissioner who holds, or is acting in, an office or position that is equivalent to an SES employee.

Note:

The notice may be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901 .

80UC(2)    
The notice must:

(a)    set out the name of the entity to whom the notice is given; and

(b)    set out details of the contravention; and

(c)    specify either or both of the following:

(i) action the entity must take, or refrain from taking, within a reasonable period specified in the notice, to address the contravention;

(ii) steps the entity must take, within a reasonable period specified in the notice, to ensure that the conduct constituting the contravention is not repeated or continued; and

(d)    explain that a failure to comply with the notice may contravene a civil penalty provision; and

(e)    explain that the entity may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for a review of the notice on either or both of the following grounds:

(i) the entity has not committed the contravention set out in the notice;

(ii) the notice does not comply with this subsection.

80UC(3)    
The notice may also require the entity to produce, within a reasonable period specified in the notice, reasonable evidence of compliance with the notice.

Entity must comply with compliance notice

80UC(4)    
An entity contravenes this subsection if:

(a)    the entity is given a notice under subsection (1) ; and

(b)    the entity fails to comply with the notice.

80UC(5)    
Subsection (4) is a civil penalty provision.

Note:

Section 80U deals with civil penalty provisions in this Act.

80UC(6)    
The amount of the penalty payable by a person in respect of a contravention of subsection (4) must not exceed 200 penalty units.

Effect of complying with a compliance notice

80UC(7)    
An entity that complies with a notice given under subsection (1) in relation to a contravention of subsection 13K(1) or (2) is not taken by that compliance:

(a)    to have admitted to contravening that subsection; or

(b)    to have been found to have contravened that subsection.

Relationship with civil penalty provisions

80UC(8)    
The Commissioner must not apply for an order under Part 4 of the Regulatory Powers Act in relation to a contravention of subsection 13G(1) , 13H(1) or 13K(1) or (2) of this Act constituted by particular conduct engaged in by an entity, if:

(a)    the entity has been given a notice under subsection (1) of this section in relation to a contravention constituted by the same conduct; and

(b)    either of the following subparagraphs applies:

(i) the notice has not been withdrawn, and the entity has complied with the notice;

(ii) the entity has made an application under section 80UD of this Act in relation to the notice and the application has not been completely dealt with.

Relationship with infringement notices

80UC(9)    
A notice must not be given under subsection (1) to an entity in relation to a contravention if:

(a)    the entity has been given an infringement notice under Part 5 of the Regulatory Powers Act in relation to the contravention; and

(b)    the infringement notice has not been withdrawn.

80UC(10)    
An infringement notice must not be given to an entity under Part 5 of the Regulatory Powers Act in relation to a contravention of subsection 13K(1) or (2) of this Act if the entity has been given a notice under subsection (1) of this section, in relation to the contravention, that has not been withdrawn or cancelled.

Relationship with enforceable undertakings

80UC(11)    
A notice must not be given under subsection (1) to an entity in relation to a contravention if:

(a)    the Commissioner has accepted an undertaking from the entity under Part 6 of the Regulatory Powers Act in relation to the contravention; and

(b)    the undertaking has not been withdrawn or cancelled.