Lexi Webster
In Australia, there is no legal right for individuals to request that companies delete their personal data. While federal privacy law requires entities to take \reasonable steps\ to delete data once it is no longer needed, there is no explicit right to deletion. Companies are incentivized to retain data and are often advised to keep data for longer than necessary, especially if it could be useful in legal proceedings. Additionally, there are specific industries, such as telcos, that are required to retain certain customer data for a minimum period. With regards to employees, any work created while being paid by the company is considered company property, and deleting such data without permission may result in legal consequences.
| Characteristics | Values |
|---|---|
| Can companies keep data indefinitely? | Yes, there is no explicit right to deletion in Australia. |
| Can companies be requested to delete data? | Yes, but it is up to the company to decide whether they still need the data. |
| Can employees delete company files? | No, any files saved on the company's drive or cloud are considered data that belongs to the company. |
| Can employees delete personal files? | Yes, employees can delete personal files, but they are not supposed to use a company PC for personal use. |
| Can employers provide references? | Some employers have a policy of not providing references, and only confirming whether an employee worked for their organisation. |
| Can employers refuse to provide employment records? | No, employers are legally required to provide requested employment records to a Fair Work Inspector in some circumstances. |
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What You'll Learn
Company-created files
In Australia, any files created by a company employee during their paid employment are considered the property of the company. This means that employees cannot delete or take these files without the company's express permission. If an employee deletes company-created files, they may face serious legal issues. It is advisable to check the employment contract for specific clauses regarding the deletion of company data.
Australian law does not explicitly grant consumers the right to have their personal data deleted by companies. However, federal privacy law states that entities must take "reasonable steps" to delete data once it is no longer needed. The definition of "reasonable steps" is vague, and it is ultimately left to the company to determine if they still "need" the data.
The Australian Privacy Principles (APPs) provide guidelines for managing employees' personal information. While not mandatory, best-practice employers adhere to these principles, which include having clear policies on the types of information collected, how it is stored, accessed, and used, as well as procedures for addressing breaches of privacy.
Additionally, certain government agencies, such as the Australian Taxation Office and the Australian Fair Work Inspector, may legally request employee information from employers for specific purposes. Employers are obligated to provide this information upon request.
In summary, it is illegal for employees to delete company-created files in Australia without permission. Companies are encouraged to implement privacy policies and practices that align with the APPs to protect employee and consumer data. While consumers have limited rights to delete their data, federal privacy laws encourage entities to take reasonable steps toward data deletion when it is no longer required.
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Personal files
In Australia, there is no legal right to erasure or "right to be forgotten". This means that consumers have very few rights when it comes to getting companies to delete their personal data, even when they are no longer a customer. However, Australian privacy laws do give individuals the right to correct personal information held about them by an organisation or agency if it is inaccurate, out of date, incomplete, irrelevant, or misleading.
The federal privacy law in Australia states that entities must take "reasonable steps" to delete data once it is no longer needed. This is also a requirement at the state level. However, it is up to the entity to decide whether they still "need" the data. Companies often keep data for longer than the minimum timeframe, especially if it could be useful in legal proceedings.
There are some exceptions to the requirement to delete data once it is no longer needed. For example, data contained in a Commonwealth record or where an Australian law, court order, or tribunal order requires the entity to retain the information. Additionally, an organisation or agency may have a legal need to keep particular information for a certain period and may refuse requests to delete or amend this information during this time.
It is important to note that deleting personal files or data belonging to an organisation without permission is illegal and can result in serious legal consequences. This includes data saved on the organisation's drive, cloud, or other digital storage systems.
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Legal requirements
In Australia, there is no legal right to erasure or a "right to be forgotten". However, the federal privacy law states that entities must take "reasonable steps" to delete data once it is no longer needed. This is also a requirement at a state level. Nevertheless, it is up to the entity to decide whether they still need the data.
There are some laws that require certain records to be retained for a specified period. For example, companies must hold certain records for seven years under the Corporations Act and the Anti-Money Laundering and Counter-Terrorism Financing Act. Telcos must retain specific customer data for a minimum of two years.
The Australian Privacy Principles (APPs) outline the obligations of employers when managing employees' personal information. Employers are required to have clear policies detailing the types of information they can collect and retain, as well as when and how it can be passed on. The APPs also require entities to take reasonable steps to destroy or de-identify personal information once it is no longer needed. This does not apply if the information is contained in a Commonwealth record or if retention is required by law or a court/tribunal order.
In terms of deleting company files upon leaving a job, it is generally advised against. Any files saved on the company's drive or cloud are considered data that belongs to the organisation. Deleting these files may result in serious legal issues. It is recommended to check the employment contract for any specific clauses related to data deletion.
Additionally, anything created while being paid by the company is considered their property. Express permission is typically required to delete or take such files, even for personal historical purposes. It is important to ensure that all files are backed up and accessible by the company before departure to avoid potential legal issues.
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Privacy policies
In Australia, privacy policies are governed by the Australian Privacy Principles (APPs) and the Privacy Act. While there is no right to erasure in Australian law, the federal privacy law states that entities must take "reasonable steps" to delete data once it is no longer needed. This is supported by the APPs 11.1 and 11.2, which require entities to take reasonable steps to protect personal information and destroy or de-identify it when it is no longer required.
The Office of the Australian Information Commissioner's website provides guidance on privacy policies, stating that organisations should have clear and up-to-date policies detailing the types of personal information they hold, how they collect, store, and use it, as well as procedures for accessing stored data, transferring it overseas, and addressing privacy breaches.
During the COVID-19 pandemic, the retention and deletion of personal information were particularly important. Entities were advised to regularly assess their data holdings and determine if they should continue collecting and retaining personal information, such as vaccination status and contact tracing details.
Some companies do have policies to comply with deletion requests, and they outline the steps individuals can take to have their data removed. However, certain businesses may be limited in their ability to delete data due to legal requirements or technical challenges, such as data being stored across multiple locations or locked in historical backups.
Additionally, there are instances where organisations may refuse to delete data due to perceived future value. This can include potential legal proceedings or data being used for backup purposes.
Australian privacy laws do provide individuals with the right to correct personal information held by organisations or agencies. If an organisation refuses to make the requested corrections, they must inform the individual of the reasons and allow them to associate a statement expressing their disagreement with the information.
While there is a push for stronger privacy regulations in Australia, currently, the onus is on individuals to manage their data shared with companies, and there is no legal right to have data deleted after a certain period.
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Employee records
In Australia, employers are legally obliged to retain certain employee records and make them accessible to current and former employees when requested. These records include personal details such as the employee's name and address, as well as information relating to their employment, such as health information, engagement, training, disciplining, resignation, termination, terms and conditions of employment, performance, conduct, hours of employment, and salary or wages. Employers are also required to keep records relating to an employee's tax and superannuation for a specified period. For example, superannuation records should include the employee's super fund name, payment amount and date, pay period, and reason for payment.
The handling of employee records by private sector employers is exempt from the Australian Privacy Principles in certain circumstances. This exemption applies if the organisation's act or practice is directly related to a current or former employment relationship. However, it is considered best practice for employers to voluntarily comply with these principles, and they may be legally required to provide employee records to Fair Work Inspectors or certain government agencies upon request.
While there is a general obligation to retain employee records, there may also be circumstances in which personal information should be deleted or de-identified, particularly when it is no longer needed. This is to protect against unexpected and unwelcome secondary uses of the information. In the context of COVID-19, organisations have been advised to assess whether they should continue collecting and retaining personal information, such as vaccination status and health information, and to destroy such information if there is no longer a need to retain it.
It is important to note that employers are not permitted to request an employee's medical records without their consent. However, if provided, these records must be stored appropriately and treated with the same confidentiality as other employment-related records.
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Frequently asked questions
No, you cannot delete company files before leaving your job. Anything created while being paid by the company is the company's property. You may face serious legal issues if you delete company files.
It is illegal to take a copy of company files. However, it will likely go unnoticed if you use a new, fresh USB.
You can delete any "personal files", such as personal expenses. However, you are not supposed to use your work computer for personal use.
No, there is no legal right to erasure in Australia. It is up to the company to decide whether they still "need" your data.
You have the right to ensure that company data on you is correct and only used for the intended purpose. You can also practice good digital hygiene, such as not reusing passwords.
