Privacy and Personal Information Protection Amendment Act 2022: What To Know About the New MNDB Scheme for New South Wales

On 16 November 2022, the New South Wales (NSW) Parliament passed the amendments to the Privacy and Personal Information Act of 1998 (PPIP Act). The amendments aim to establish a Mandatory Notification of Data Breaches (MNDB) Scheme and extend the PPIP Act’s application to NSW-owned corporations that are not subject to the Privacy Act 1988.

Now the PPIP Act requires public sector agencies to notify the Privacy Commissioner of eligible data breaches. Additionally, the MNDB Scheme requires public sector agencies to satisfy other privacy requirements, such as keeping an internal data breach incident register and a publicly accessible data breach policy. Privacy and Personal Information Protection Amendment Act 2022 provides 12 month transition period for public sector agencies in NSW to comply with the MNDB scheme.

Read on to learn more about the key amendments in the Privacy and Personal Information Protection Amendment Bill 2022:

Eligible Data Breach

An eligible data breach means:

1. there is unauthorized access to, or unauthorized disclosure of, personal information held by a public sector agency and a reasonable person would conclude that the access or disclosure of the information would be likely to result in serious harm to an individual to whom the information relates, or
2. personal information held by a public sector agency is lost in circumstances where:
   1. unauthorized access to, or unauthorized disclosure of, the information is likely to occur, and
   2. if the unauthorized access to, or unauthorized disclosure of, the information was to occur, a reasonable person would conclude that the access or disclosure would likely result in serious harm to an individual to whom the information relates.

Assessment of Data Breaches

Public sector organizations must assess the breach to determine whether the breach is an eligible data breach within 30 days of becoming aware of the breach. It is the responsibility of the officer or employee who first discovers the breach to report it as soon as possible to the head of the public sector agency. The head must then undertake the following steps:

• Take all reasonable steps available to contain the data breach;
• Carry out an assessment to ascertain whether the breach in question is an eligible data breach within 30 days of becoming aware of the breach;
• Take reasonable steps to mitigate any and all harm done by the suspected breach.

The Mandatory Data Breach Notification Scheme does not specify what constitutes the threshold for 'likely to result in serious harm,' but it does provide guidance on the factors to consider when making this assessment.

The assessor must take into consideration of factors such as the types of personal information involved in the breach, the sensitivity of the personal information involved in the breach, the nature of the harm that has occurred or may occur, and any security measures protecting the personal information.

Notification of Data Breaches to Privacy Commissioner

If the breach is likely to result in serious harm to an individual, then the public sector agency must notify the Privacy Commissioner. The notification must include information such as whether the breach is a cyber incident, the total number of data subjects affected by the breach, the estimated cost of the breach, etc.

Notification of Data Breaches to Individuals

As soon as the head of the public agency becomes aware that an eligible data breach has occurred, they must take all reasonably practicable steps to notify the affected individuals. In case individually notifying all the individuals would not be practical, or the agency is unable to notify the individual, the public agency may instead opt for the following:

• Publish a public notification of the breach;
• Take reasonable steps to publicize the notification.

In case a public notification has to be issued, the agency must ensure a public notification register is easily available on the agency's website. Additionally, as soon as the notice is published, the agency must inform the Privacy Commissioner of its publication. The Privacy Commissioner is then required to publish information on their own site about how users can access the notification for at least 12 months after it is published.

Information to be included in the Notification

The notification should include the breach-related information, including the date of the breach and a description of the breach. The personal information that was the subject of the breach, how the breach occurred and the type of breach that occurred, contact details of the agency, etc.

Exemptions Under MNDB Scheme

There are a few exceptions to the MNDB requirements for public agencies, such as when multiple agencies are involved in an eligible data breach, ongoing investigations or legal proceedings could be negatively affected, notification poses a risk to health and safety, or it could compromise cyber security. These exemptions are prescribed under Division 4 of the Privacy and Personal Information Protection Amendment Bill 2022.

Powers of Privacy Commissioner

Under the Privacy and Personal Information Protection Amendment Bill 2022, the regulatory powers of the Privacy Commissioner have been enhanced. The Privacy Commissioner has the following powers if they have reasonable grounds to believe an eligible data breach has occurred at a public sector agency:

• The Privacy Commissioner may direct the head of the public sector agency to prepare a statement describing various details related to the data breach;
• The Privacy Commissioner may recommend the head of the public sector agency notify all the individuals that need to be notified per the aforementioned requirements or publish a public notice;
• The Privacy Commissioner may investigate, monitor, audit, and report on the exercise of a function of 1 or more public sector agencies involved in an eligible data breach;
• The Privacy Commissioner can direct the head of a public sector agency to provide them access to their premises to assess the agency's compliance with the Commissioner's directions and recommendations.

Other Requirements For Public Sector Agencies

Privacy and Personal Information Protection Amendment Bill 2022 has also introduced the following requirements for public sector agencies:

• Preparing and publishing a data breach policy;
• The policy must be publicly available;
• The head of the public agency must ensure the establishment and maintenance of an internal register for all eligible data breaches;
• Such a register must include the following information:
  • Who was notified of the breach;
  • When the breach was notified;
  • The type of breach;
  • Details of steps taken by the public sector agency to mitigate the harm done by the breach;
  • Details of the actions taken to prevent future breaches;
  • The estimated cost of the breach.

How Can Securiti Help

Securiti is renowned for providing data governance, privacy, and compliance enterprise solutions. Its comprehensive product range, which includes cookie consent management, vendor management, DSR automation, and breach management, among many others, can help your organization comply with its obligations per the PPIP Act requirements.

Securiti’s breach management solution seamlessly automates an organization's incident response plan by gathering incident details, assessing the breach severity, identifying the scope, and optimizing notifications to users and regulatory bodies per the regulation the organization is subject to. Furthermore, organizations can track any and all remediation measures to maintain a detailed audit trail and autodetect impact users to discover various insights.

Request a demo today and learn more about how Securiti can help you achieve compliance.