Australia - Frequently asked questions
Real estate
* Including property managers
Question 1: I'm concerned about the way my real estate agent* or landlord is handling my personal information. Who can help me?
We can only investigate a complaint against an agent or landlord if they are covered by the Privacy Act, and if your complaint is about the way they handle your personal information.
Some real estate agents and landlords are covered by the Privacy Act and others are not.
If an agent has an annual turnover of more than $3 million it will be required to comply with the Privacy Act. Generally, the Privacy Act will not apply to agents that have an annual turnover of less than $3 million.
There are some exceptions to this general rule. For example, an agent that trades in personal information (receives money or some kind of benefit from collecting or giving out personal information) may be covered by the Privacy Act, even if it has an annual turnover of less than $3 million. You can find out more about these exceptions here.
A landlord will usually not be covered by the Privacy Act. However, they will be if, for example, they are conducting real estate activities as a business which has a turnover of more than $3 million.
If you want to know whether an agent or landlord is covered by the Privacy Act, you can ask them or check their website and see if they have a privacy policy. If they are covered by the Privacy Act they should have a privacy policy.
Information about how to make a complaint is available here.
Your state or territory Fair Trading / Consumer Affairs office, tenants' organisation or Real Estate Institute may also be able to help you.
Fair Trading / Consumer Affairs:
Tenants' Organisations:
http://www.tenants.org.au/publish/linksStateTenantOrganisations/index.php
Real Estate Institute of Australia:
http://www.reiaustralia.com.au/
Question 2: If a real estate agent* collects information about me, what do they have to do under the Privacy Act?
Real estate agents that are covered by the Privacy Act need to comply with the National Privacy Principles (NPPs). The NPPs are 10 rules that set out how organisations may collect, use, disclose and secure personal information. They also give you a right to access information the agent holds about you and correct it if it is wrong. You can find more information here.
Under the Privacy Act, stricter rules apply to the collection ‘sensitive' personal information, for example information about your religious beliefs, criminal record, racial/ethnic origin, and sexual preferences. More information is available here.
Question 3: Can a real estate agent* take an image of my property or household belongings?
Yes, but if the real estate agent is covered by the Privacy Act and the image has anything in it that can identify you then the agent would need to comply with the National Privacy Principles when handling that image.
An image of your property or household belongings will only be covered by the Privacy Act if details within the image identify you or another individual and if the image is collected by an agent that is covered by the Privacy Act. For example, family photos and photos of medication or bills would be personal information, if they reveal your identity.
In Queensland from July 2009, new legislation will require agents to get permission from tenants to take photos of any of their belongings, regardless of whether they identify you or another individual more.
Question 4: I am visiting a property that is open for inspection. What does the real estate agent* have to do if they want to collect my information?
If the real estate agent is covered by the Privacy Act, they must not collect more personal information than they need for the purpose stated to you. Personal information is information that identifies you. The agent also must not collect any personal information merely on the off chance that they may be able to use it in the future.
If the agent collects your personal information they must tell you why they want to collect that information, to whom they would usually disclose it, the fact that you can access that information and any consequences if you do not provide the information.
The agent may do this verbally or by giving you a written notice. More information is available here. You could also ask the agent how your information will be kept secure and whether it will be destroyed once the property has been sold or leased.
If an agent wants you to show evidence of your identity (such as a driver's licence) or provide other personal details as a condition of entry to an open inspection, you could ask them to consider viewing rather than copying the information. If they need to keep a record, the agent could write down the minimum necessary details on their file and record the type of document they have sighted.
The Privacy Act will not apply to information that agents view but it will apply to any personal information that they write down. Even if the agent is not covered by the Privacy Act you can still ask them these questions.
Question 5: A real estate agent* has collected my contact details at an open inspection. I'm worried about what they are going to do with my details.
Real estate agents will often contact you after you attend an open inspection. If the agent is covered by the Privacy Act they should have told you or have given you a notice at the open inspection that they collected your contact details for that purpose.
The agent can also contact you for another related purpose if you would reasonably expect them to, such as to tell you about similar properties that are available. The agent could also use your contact details for direct marketing. However if they do use your information for direct marketing, they must tell you that they intend to do this when they collect your details.
The agent must also tell you how you can opt out of receiving more marketing information from them. You can get more information about how to stop organisations sending you unsolicited marketing information here.
Question 6: I'm applying for a lease. What ‘identity documents' can the real estate agent* collect from me?
When you apply for a lease a real estate agent will often ask you for copies of documents that are commonly known as ‘identity documents' such as your passport, Medicare card, Australian Citizenship certificate, birth certificate or drivers licence.
If an agent is covered by the Privacy Act, they must only collect information that is necessary for that purpose, for example, to assess your application. The agent must not collect any personal information merely on the off chance that they may be able to use it in the future.
You could ask the agent to consider simply viewing your identity documents rather than copying them.
The agent must tell you verbally or in writing
- why they want to collect that information
- who they would usually disclose it to
- that you can access that information and
- any consequences if you do not provide the information.
More information is available here.
Government documents usually have a unique number or ‘identifier'. Different rules apply to different numbers.
Rules protecting Australian Government numbers
Examples of Australian Government document with numbers include: Medicare, Australian Citizenship certificate, Centrelink or Department of Veterans Affairs.
Real estate agents that are covered by the Privacy Act generally must not use or disclose these numbers. If they need a copy of one of these documents they should blank the number out on the copy. More information is available here.
Tax file numbers
Stronger rules apply to the handling of tax file numbers and these apply regardless of whether the agent is covered by the Privacy Act. More information can be found here.
Driver's licence and birth certificate numbers
Your driver's licence and birth certificate numbers are issued by State and Territory governments. The Privacy Act does not prevent an agent from collecting these numbers.
However your driver's licence or birth certificate may contain information that the agent does not need. For example, your driver's licence may indicate your organ donor status, which is health information and is classed as sensitive under the Privacy Act. Agents should generally not collect sensitive information without your consent. More information is available here.
You could also ask the agent how any information they collect will be kept secure and whether it will be destroyed if the property is leased to someone else.
Even if the agent is not covered by the Privacy Act you can still ask them these questions.
Question 7: Who can a real estate agent* disclose my personal information to?
A real estate agent that is covered by the Privacy Act can disclose your personal information without your consent for the primary purpose for which the information was collected.
For example, they may collect your information so they can assess your application for a tenancy. In that case they may disclose the fact that you have applied to rent the property to a residential tenancy database operator, the landlord, your most recent previous agent if they are providing you with a reference, and any other referee you have nominated.
Similarly, if an agent collects your personal information to assess your application for a tenancy and your application is successful the agent can then use your personal information for other related purposes in ways you would reasonably expect.
For example if you ask them to fix a broken tap, it would be okay for them to give your phone number to a plumber so that the plumber can arrange a time to repair it. However, the agent should not, for example, tell your neighbour where you work.
You can find out more about how a real estate agent can disclose your personal information here.
Question 8: My real estate agent* has given information about me to a residential tenancy database operator. Can they do this?
If the real estate agent is covered by the Privacy Act they can only give information about you to a residential tenancy database operator if they have given you notice that they intend to do so. A residential tenancy database operator maintains a database which may record information about your tenancy history. Agents can subscribe to these databases to check whether any information about you has been listed by another agent.
Even if your agent is not covered by the Privacy Act, all residential tenancy database operators are covered by the Privacy Act, and therefore must comply with the National Privacy Principles when they handle your personal information.
Question 9: A real estate agent* has listed me on a residential tenancy database. Can I access the information the residential tenancy database holds about me?
Yes. All residential tenancy database operators are covered by the Privacy Act. However there are some situations where they do not have to give you access more. Giving access may involve allowing you to inspect your record or giving you a copy of it. There may also be fees involved more.
Some of the major residential tenancy database operators in Australia are:
TICA (Tenancy Industry database) http://www.tica.com.au/
National Tenancy Database http://www.ntd.net.au/
EAC Multilist http://www.eac.com.au/
Trading Reference Australia http://www.tenantreference.com.au/
RP Data http://www.rpdata.com/
Question 10: I believe that a real estate agent* or residential tenancy database operator has recorded incorrect information about me. What can I do?
Real estate agents that are covered by the Privacy Act and all residential tenancy database operators have to take reasonable steps to keep records of personal information they hold accurate, complete and up-to-date.
If you think they hold incorrect information about you, the Privacy Act says that you can ask them to correct that personal information. To do this, you will need to be able to establish that the information they hold about you is not accurate, complete and up-to-date.
If they disagree with you about the correction, the Privacy Act says you can ask them to attach a note to the information stating that you believe that the information is not accurate, complete or up-to-date. More information is available here.
You can also make a complaint to our Office if you are not happy with the outcome. Information is available here.
Your state or territory Fair Trading / Consumer Affairs office, tenants' organisation or Real Estate Institute may also be able to help you. See FAQ 9
