February 6, 2012

Privacy breaches in relation to the Personal Property Securities Register

Section 173(2) of the PPS Act prohibits unauthorised searches of the PPS Register, or use of the personal information obtained as a result of an unauthorised search. These interference with privacy provisions cover any entity or individual whether or not they are otherwise subject to the Privacy Act.

Only people with a genuine purpose for searching personal property securities may search the Register. The Act contains a list of persons who may search the register, and for what purposes: Section 172(2).

Persons who undertake a search on the Register in relation to an individual will be required to make a declaration that they are undertaking a search for an authorised purpose.

There are serious consequences for undertaking an unauthorised search on the Register:
• Civil penalties may apply (maximum of approximately $5,500 per unauthorised search by an individual, or $27,500 per unauthorised search by a body corporate)
• Parties who suffer loss or damage may recover damages from the person who undertook the search; and
• The unauthorised search is an interference with the privacy of an individual under section 13 of the Privacy Act 1988.

The Act requires that certain collateral must be described on the Register by serial numbers. Requiring collateral types used for consumer purposes to be described by serial number promotes privacy protection, as such property would be identifiable on the Register by the serial number alone, and not by the grantor’s name.

A serial number search should be conducted if the collateral is:
• consumer property;
• is a motor vehicle or watercraft or aircraft; and or
• certain kinds of intangible property (designs, patents, plant breeder's rights and trade marks).

However, when registering a motor vehicle as commercial property, the user has the choice of registering it with or without a serial number. Regardless of which choice the user makes, the grantor details are mandatory. The details are the grantor’s name and date of birth. If the grantor is a company, it will be identified by its ACN only.

Registrations on the Register will also include data about the secured party, such as the secured party’s identifier and address for service. But it will not be possible to search the Register against the details of the secured party.

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Posted 6th February 2012 by admin in Legislation, PPS register