Privacy Legislation Amendment (Enforcement and Other Measures) Act 2022 (83 of 2022)

Schedule 1   Amendments

Privacy Act 1988

14   At the end of section 13G

Add:

(1A) Subsection (1) is a civil penalty provision.

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

(2) The amount of the penalty for a contravention of subsection (1) by a person other than a body corporate is an amount not more than $2,500,000.

(3) The amount of the penalty for a contravention of subsection (1) by a body corporate is an amount not more than the greater of the following:

(a) $50,000,000;

(b) if the court can determine the value of the benefit that the body corporate, and any related body corporate, have obtained directly or indirectly and that is reasonably attributable to the conduct constituting the contravention - 3 times the value of that benefit;

(c) if the court cannot determine the value of that benefit - 30% of the adjusted turnoverof the body corporate during the breach turnover period for the contravention.

(4) Subsection (3) applies despite paragraph 82(5)(a) of the Regulatory Powers Act.

(5) For the purposes of paragraph (3)(c), the adjusted turnover of a body corporate during a period is the sum of the values of all the supplies that the body corporate, and any related body corporate, have made, or are likely to make, during the period, other than:

(a) supplies made from any of those bodies corporate to any other of those bodies corporate; or

(b) supplies that are input taxed; or

(c) supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999); or

(d) supplies that are not made in connection with an enterprise that the body corporate carries on; or

(e) supplies that are not connected with the indirect tax zone.

(6) Expressions used in subsection (5) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.

(7) For the purposes of paragraph (3)(c), the breach turnover period for a contravention means the longer of the following periods:

(a) the period of 12 months ending at the end of the month in which the contravention ceased, or proceedings in relation to the contravention were instituted (whichever is earlier);

(b) the period:

(i) starting at the beginning of the month in which the contravention occurred or began occurring; and

(ii) ending at the same time as the period determined under paragraph (a).