Victorian Consolidated Legislation

Information Privacy Act 2000 - SECT 64

PART 8 GENERAL

Capacity to consent or make a request or exercise right of access

64. Capacity to consent or make a request or exercise right of access



(1) If an IPP or an applicable code of practice requires the consent of an
individual to the collection, use or disclosure of personal information or to
the transfer of personal information to someone who is outside Victoria, the
power to give that consent may be exercised on behalf of an individual who is
incapable of giving consent by an authorised representative of that
individual, if the consent is reasonably necessary for the lawful performance
of functions or duties or exercise of powers in respect of the individual by
the authorised representative.

(2) If an IPP or an applicable code of practice empowers an individual to
request access to, or the correction of, personal information or confers on an
individual a right of access to personal information, the power to make that
request, or the right of access, may be exercised-

   (a)  by the individual personally, except if the individual is a child who
        is incapable of making the request; and

   (b)  by an authorised representative of the individual if-

   (i)  the individual is incapable of making the request or exercising the
        right of access; and

   (ii) the personal information to be accessed is reasonably necessary for
        the lawful performance of functions or duties or exercise of powers in
        respect of the individual by the authorised representative.

(3) For the purposes of subsections (1) and (2), an individual is incapable of
giving consent, making the request or exercising the right of access if he or
she is incapable by reason of age, injury, disease, senility, illness,
disability, physical impairment or mental disorder of-

   (a)  understanding the general nature and effect of giving the consent,
        making the request or exercising the right of access (as the case
        requires); or

   (b)  communicating the consent or refusal of consent, making the request or
        personally exercising the right of access (as the case requires)-

despite the provision of reasonable assistance by another individual.

(4) An authorised representative of an individual must not give consent or
request access to, or the correction of, personal information if the
authorised representative knows or believes that the consent or request does
not accord with the wishes expressed, and not changed or withdrawn, by the
individual before he or she became incapable of giving consent or requesting
access and any purported consent given or request made in those circumstances
is void.

(5) An organisation may refuse a request by an authorised representative of an
individual for access to the personal information of the individual if the
organisation reasonably believes that access by the authorised representative
may endanger the individual.





(6) In this section, authorised representative, in relation to an individual,
means a person who is-

   (a)  a guardian of the individual; or

   (b)  an attorney for the individual under an enduring power of attorney; or

   (c)  an agent for the individual within the meaning of the
        Medical Treatment Act 1988; or

   (d)  an administrator or a person responsible within the meaning of the
        Guardianship and Administration Act 1986; or

   (e)  a parent of an individual, if the individual is a child; or

   (f)  otherwise empowered under law to perform any functions or duties or
        exercise powers as an agent of or in the best interests of the
        individual-

except to the extent that acting as an authorised representative of the
individual is inconsistent with an order made by a court or tribunal.