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Are real estate agents covered by the Privacy Act?

Generally, yes, as the Privacy Act covers businesses with an annual turnover of more than $3 million and this is likely to include most real estate agents. If the real estate agency operates a Residential Tenancy Database, it will be covered by the Privacy Act in relation to the operation of that database, even if the business itself is not covered.

If you want to know whether an agent or landlord is covered by the Privacy Act, you can ask them. A real estate agent covered by the Privacy Act should have a privacy policy on their website and must make it available to you.

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What information can my real estate agent collect?

A real estate agency can only collect the personal information of yours that is reasonably necessary for one of its functions or activities. A real estate agent is not allowed to collect more information than is necessary because it is convenient to do so. It is also not allowed to collect information because they think it may be useful in the future.

A real estate agent should notify you of certain matter before they collect your personal information, including:

  • why they want to collect the personal information
  • any consequences if you do not provide the personal information
  • who they would usually disclose it to
  • that you can access the personal information
  • that you can complain about their handling of your personal information.

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Who can a real estate agent disclose my personal information to?

A real estate agent that is covered by the Privacy Act can only disclose your personal information for the main reason they collected it (the primary purpose), unless an exception applies, such as that you consent or you would reasonably expect the secondary use or disclosure.

For example, they may collect your information so they can assess your application for a tenancy. In this 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 giving you a reference) and any other referee you have nominated.

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Australian and State and Territory Government documents usually have a unique number, such as Medicare numbers, Centrelink Customer Reference Numbers (CRNs), driver licence numbers or birth certificate numbers. These are known as ‘government related identifiers’ under the Privacy Act.

The Privacy Act does not prevent a real estate agent covered by the Privacy Act from collecting these numbers where it is reasonably necessary for their functions or activities. However an agent generally must not adopt, use or disclose these numbers. If the agent needs to use or disclose a document containing a government related identifier, including making a copy of the document, they must generally blank the number out.

Your driver licence or birth certificate may contain personal information that the agent does not need, for example, your driver licence may include your organ donor status, which is health information and is classed as 'sensitive' under the Privacy Act. If you need to provide a copy of these documents to the agent, you could consider blanking this type of information out.

More information about government related identifiers can be found in the Australian Privacy Principles (APP) guidelines, Chapter 9 (APP 9).

What about tax file numbers?

Tax file numbers (TFNs) are unique numbers issued by the Australian Taxation Office (ATO) to identify individuals, corporations and others who lodge income tax returns with the ATO. Strict rules apply to the handling of tax file numbers. These rules apply to all real estate agents whether or not they are covered by the Privacy Act.

More information about tax file numbers is available on the Tax File Numbers page.

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Can a real estate agent take photos in my house?

Tenancy laws cover when you real estate agent is allowed to take photos in your house, and it is best practice for them to consult you about this.

If the agent collects personal information, such as images of photos or diplomas, they must handle it in accordance with the Privacy Act.

You should complain to the real estate agent if you feel they have mishandled your personal information. If you are not satisfied with their response, you can complain to our office for free.

If a real estate agent is taking photos of your property or household belongings, especially for advertising purposes, you may like to remove items that could reveal your personal information, such as photographs.

For other concerns you should contact your State or Territory rental tenancy association.

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How much personal information can a real estate agency collect from me when I'm applying for a lease?

If an agent is covered by the Privacy Act, they must only collect information that is necessary for that purpose, in this case, to assess your application. An agent covered by the Privacy Act can collect personal information about an individual if:

  • the collection of the personal information is necessary for its functions or activities
  • it collects the information by lawful and fair means and not in an unreasonably intrusive way.

Generally speaking, agents should not collect ‘sensitive’ information (e.g. health, race, religious beliefs or sexual preferences) without your consent.

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What is a tenancy database?

Tenancy databases generally store personal information about individuals relating to defaults or alleged defaults on tenancy agreements, including:

  • failures to pay rent
  • damage to rental property.

This information is usually supplied to tenancy database operators by real estate agents. The information in these databases is then accessed by real estate agents assessing potential tenants.

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