AI Privacy Lawyers Adelaide: Privacy Act Rules for AI Tools, Automated Decisions and Training Data

AI and privacy in South Australia

For businesses covered by the Privacy Act, it applies to personal information going into an AI tool and coming out of it. From 10 December 2026, privacy policies must also explain automated decisions. Talon Legal advises Adelaide businesses that use AI tools on customer information, and businesses building AI into their products. Book a same-day free 30-minute consultation or call (08) 7094 2021.


AI and privacy key facts

IssuePosition in South Australia
Who is coveredAPP entities. A business with annual turnover of $3,000,000 or less is generally exempt unless an exception applies (Privacy Act 1988 (Cth) section 6D).
OAIC guidance on AI productsThe OAIC's Guidance on privacy and the use of commercially available AI products (21 October 2024, updated 17 January 2025) says the Privacy Act applies to all uses of AI involving personal information, and that public-facing chatbots should be clearly identified as such.
AI-generated contentPersonal information includes an opinion, whether true or not, about an identified or reasonably identifiable individual (section 6(1)).
Prompts and uploadsA use or disclosure for a secondary purpose needs consent or an exception, such as reasonable expectation and relatedness (APP 6.1 and 6.2(a)).
Automated decisionsFrom 10 December 2026, a privacy policy must describe decisions, made by computer programs using personal information, that could reasonably be expected to significantly affect individuals (APP 1.7 and 1.8).
Training on data heldWhere consent or reasonable expectation cannot be clearly established, the OAIC's Guidance on privacy and developing and training generative AI models (21 October 2024, updated 23 October 2024) says seek consent, offer a meaningful and informed opt-out, or both.
Overseas AI vendorsReasonable steps before disclosing to an overseas recipient (APP 8.1). Where the APPs do not otherwise apply to the recipient, its act that would breach them is taken to be the business's (section 16C).
Maximum penaltySerious interference with privacy by a body corporate: the greatest of $50,000,000, three times the benefit if it can be determined, or otherwise 30% of adjusted turnover during the breach turnover period. Anyone else: $2,500,000 (section 13G).
First stepSame-day free 30-minute consultation. Call (08) 7094 2021.

Need an AI privacy lawyer in Adelaide?

Our AI privacy lawyers in Adelaide advise businesses that use AI tools on personal information, and businesses that build AI into their products. The Privacy Act 1988 (Cth) and its Australian Privacy Principles (APPs) govern that information. The Privacy and Other Legislation Amendment Act 2024 adds rules on automated decisions from 10 December 2026. The Office of the Australian Information Commissioner (OAIC) has published Guidance on privacy and the use of commercially available AI products (21 October 2024, updated 17 January 2025) and Guidance on privacy and developing and training generative AI models (21 October 2024, updated 23 October 2024). This page states the law current to 7 November 2026.

This guide is part of our artificial intelligence practice. Privacy Act compliance generally is covered in our data protection and privacy guide. Related guides cover AI contracts and data licensing, AI and copyright and cyber incident response.

Free Consultation. Before staff use a new AI tool on customer information, send us its terms. Book a same-day free 30-minute consultation or call (08) 7094 2021.

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Muhammad Zubair profile picture
Muhammad Zubair
29 October 2026
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Talon Legal is the best law firm in the Adelaide. Dan was able to resolve my case before time, achieving a favourable outcome. I would highly recommend Talon Legal to anyone seeking professional legal assistance. Talon Legal develops effective legal strategies to achieve the best possible outcomes.
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Jessie W profile picture
Jessie W
26 October 2026
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I had a great experience dealing with Danial at Talon Legal. From our initial conversation, he was professional, approachable and genuinely interested in understanding our business and its needs. He took the time to listen, explain things clearly and offer thoughtful, practical advice. I particularly appreciated his patience, honesty and the time he dedicated to our discussions. Although we haven’t engaged the firm for further work at this stage, the experience has left a very positive impression. I would certainly feel confident reaching out to Danial again for any future legal matters. Thank you, Danial, for your time and professionalism. It’s been a pleasure dealing with you!
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Angela Carter profile picture
Angela Carter
12 October 2026
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Was a scary experience, uut thenks to your expertise, i got the best possible outcome.
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S Google
24 September 2026
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Exceeds expectations Dan went above and beyond our expectations to deliver professional, highly detailed and very well thought out information. He included extra documents just to help us out and this was much appreciated.
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S Google
24 September 2026
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Dan went above and beyond our expectations to deliver professional, highly detailed and very well thought out information. He included extra documents just to help us out and this was much appreciated.
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Samin Adit profile picture
Samin Adit
1 September 2026
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Dan was extremely helpful and he was very patient and through and took time explaining me all the process and next step. And he carried a great sense of humor while he spoke and honestly that made it so easy to understand when I was already stressed out.
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Calvin Munatswa profile picture
Calvin Munatswa
24 August 2026
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I’m extremely happy with the service I received from Dan. He was professional, responsive, knowledgeable and genuinely committed to achieving the best possible outcome. I really appreciate the hard work, guidance and support throughout the process. Thank you for doing such a great job. I would highly recommend your services to anyone looking for a reliable and dedicated lawyer.
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Marcelle Ayoubi profile picture
Marcelle Ayoubi
4 August 2026
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Highly recommend Dan! He was prompt, reliable and efficient, with excellent communication throughout the entire process. His knowledge and professionalism gave me confidence, and he achieved a good outcome. Dan took a lot of the stress out of what could have been an overwhelming experience. Thank you, Dan, for all your support and assistance!
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Neb Trivic
24 July 2026
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Very knowledgable, helpfull and got the best outcome hoped for.
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Anton Simdyankin
21 July 2026
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Timely quote, responses and overall great experience. 100% Recommend
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Tania Stubberfield profile picture
Tania Stubberfield
16 July 2026
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I highly recommend Talon Legal and especially Daniel Esmaili. During our initial conversation for a driving offence, Dan was incredibly honest and told me that I didn't really need legal representation. He was completely down-to-earth and non-judgmental, reassuring me that people make poor choices sometimes. I felt more at ease and I chose to hire him anyway to avoid the anxiety of a court appearance, and it was the best decision I could have made. He took care of everything from start to finish, appearing in court on my behalf so I didn't have to attend at all. He explained everything clearly without using confusing legal jargon. He was also incredibly thoughtful and personal, asking how my birthday trip away went with family. Thanks to Dan, we got a fantastic outcome with a significantly reduced suspension time and a minimal fine. Dan even went above and beyond by telling me to contact him before I start driving again to double-check that my suspension is fully completed and my licence paperwork is processed correctly. On top of the amazing result, the fees were surprisingly affordable without compromising on performance and integrity. If you want an empathetic, honest, affordable and highly capable lawyer, then Dan's your man. Thankyou again Daniel Esmaili at Talon Legal.
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Bill P profile picture
Bill P
30 June 2026
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We recently engaged Dan Esmaili from Talon Legal to assist our family with a motor vehicle road rule expiation and related court matter. From the very beginning, Dan was professional, clear, and extremely supportive. He took the time to explain the process in a way we could understand, kept us informed throughout, and handled the matter with care and confidence. Most importantly, Dan achieved a successful outcome for our family, which we are very grateful for. We sincerely appreciate his guidance, responsiveness, and dedication. We would highly recommend Dan Esmaili and Talon Legal to anyone needing strong legal support and professional representation.
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Sara Gleeson profile picture
Sara Gleeson
16 June 2026
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I cannot recommend Dan Esmaili (Talon Legal) highly enough. I was extremely worried about the impact a legal problem could have on my future. From the beginning, he was professional, knowledgeable, and supportive. He took the time to explain the legal process, answered all of my questions, and worked tirelessly on my case. Thanks to his expertise and advocacy, I received a result without a conviction being recorded. This outcome has made an enormous difference to my life, and I am incredibly grateful for his dedication and hard work. If you need a lawyer who genuinely cares about their clients and achieves outstanding results, I would not hesitate to recommend Dan.
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Matthew Greenwood
16 June 2026
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Thanks Dan for your legal help . You got the best possible outcome , thanks again . Matt
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Caleb Sweeting profile picture
Caleb Sweeting
15 June 2026
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Danial Esmaili is an excellent lawyer whose clear communication style makes navigating legal matters much easier. Professional, approachable and knowledgeable, he takes the time to explain things clearly and provides confidence throughout the process.
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Yousef Al-Yasiri profile picture
Yousef Al-Yasiri
11 June 2026
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Daniel and the team at Talon Legal were truthful, helpful, and left me feeling confident and how they handled my matter. Daniel understood my situation, left me assured, was realistic with me, provided me with the advice or course of action that best suits my sitiation. If I could choose again, I would choose Daniel and the team at Talon Legal with my eyes closed.
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Matthew Morgan profile picture
Matthew Morgan
11 June 2026
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You’d be hard pressed to find someone more knowledgeable than Dan, a lovely guy too.
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Jacob Marcer profile picture
Jacob Marcer
10 June 2026
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Daniel at talon legal was by far the best lawyer I’ve had to deal with he was extremely helpful with explaining his processes and making me feel very comfortable Also achieving a great result on my case Couldn’t recommend Daniel more if I could give more stars I would Thanks again daniel
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Faros Omidvour
10 June 2026
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Talon Legal is an excellent law firm that I recpmmend without hesitation to anyone who needs responsive and considerate advice and representation.
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Egor Eremeev profile picture
Egor Eremeev
8 June 2026
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I cannot recommend Talon Legal highly enough. From the very beginning, Daniel demonstrated exceptional professionalism, legal expertise, and genuine care for my situation. Daniel took the time to understand my circumstances, explained every step of the process in clear and practical terms, and was always available to answer questions. His attention to detail, strategic thinking, and calm approach gave me confidence throughout the entire matter. What stood out most was Daniel’s commitment to achieving the best outcome while making the process as smooth and stress-free as possible. It is rare to find a lawyer who combines technical expertise with such excellent client service. Thank you, Daniel, and the Talon Legal team for your outstanding support. I would highly recommend Talon Legal to anyone seeking professional, reliable, and results-driven legal representation.
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Kaedehara Kazuha profile picture
Kaedehara Kazuha
4 June 2026
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We recently engaged Talon Legal to assist with drafting reseller agreements for our business, and the experience exceeded expectations. Dan took the time to understand our requirements, commercial objectives, and the practical realities of our industry before providing clear, strategic advice and a tailored solution. His attention to detail, commercial awareness, and ability to identify potential risks resulted in a comprehensive agreement that gave us confidence moving forward. What stood out most was the firm's proactive and innovative approach. Rather than relying on a standard template, Dan offered practical suggestions and considered scenarios we hadn't even thought of, helping create a robust and well-structured agreement. Talon Legal is a progressive firm with a fresh perspective and a strong understanding of commercial law. Professional, responsive, and easy to work with throughout the process. Highly recommended.
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Bec Chapman profile picture
Bec Chapman
22 May 2026
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Talon Legal were exemplary in their service. Dan was concise, thorough and true to the plan. For a small NGO seeking legal advice I can highly recommend :)
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Hussar1522
29 October 2025
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One of the best lawyers in Adelaide My life was being ruined because of a court case that was not true, then it became worse when I have driving charge for driving disqualification and careless driving with an accident that I did not cause. This affect my business and the lawyers protected my business and my life and reputation. They make the charges go away and I get no conviction or criminal record, and do my business contracts terms and conditions perfectly. If you want lawyers that can help you many ways I suggest you go to Talon Legal. I think one of the best law firms in Adelaide for business and criminal and traffic.
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Oldpicker64
17 August 2025
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Saved me from jail for disqualified driving I can’t thank talon legal enough for what they did to help when I had magistrates court in port adelaide and Elizabeth, lost my licence because I was sick before and had to drive in emergency to help family but police didn’t care. Talon legal helped me with disqualified driving charges in court and saved me from going back to jail this was the one time I liked working with a lawyer. Recommend talon legal for any legal problem.
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J420 profile picture
J420
2 August 2025
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Best criminal lawyers! I hired talon legal to fight a criminal case for me and they got the charge dropped. Daniel was amazing in handling my case. He actually cared about my case and me as a person. I felt really supported and I am glad I got talon legal for my court case. Best criminal lawyers in Adelaide that I spoke to.
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James Aveno
2 August 2025
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Excellent business and startup lawyers Talon Legal was incredible to work with and delivered outstanding value for money and expertise. I went into my initial meeting expecting to receive some basic information instead I was blown away by their depth of knowledge across multiple domains. I was in the process of founding a startup business in Adelaide, and explained my goal of expanding interstate and eventually internationally. The lawyer I spoke to was across contracts, terms and conditions, intellectual property protection and licensing, brand consolidation, risk minimisation and business structures and compliant advertising. I was really impressed however by their use of ingenious tools that aren’t really the domain of lawyers at least from what I’ve seen before. Daniel in particular was a bit of wizard. He walked me through how something called OSINT could be used for brand consolidation and was very transparent about the use of some of their document automation tools, and this reflected in the speed and value they provided. I really felt like I finally am able to work with a law firm that can help me with every stage of my business and was genuinely curious about what what I wanted to achieve. Even after the services were provided, Talon Legal was proactive in checking in with me to ensure my business was prospering. I have sent my friends and other entrepreneurs to them and every single one was very happy.
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James A profile picture
James A
2 August 2025
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Excellent commercial and business lawyers! Talon Legal was incredible to work with and delivered outstanding value for money and expertise. I went into my initial meeting expecting to receive some basic information instead I was blown away by their depth of knowledge across multiple domains. I was in the process of founding a startup business in Adelaide, and explained my goal of expanding interstate and eventually internationally. The lawyer I spoke to was across contracts, terms and conditions, intellectual property protection and licensing, brand consolidation, risk minimisation and business structures and compliant advertising. I was really impressed however by their use of ingenious tools that aren’t really the domain of lawyers at least from what I’ve seen before. Daniel in particular was a bit of wizard. He walked me through how something called OSINT could be used for brand consolidation and was very transparent about the use of some of their document automation tools, and this reflected in the speed and value they provided. I really felt like I finally am able to work with a law firm that can help me with every stage of my business and was genuinely curious about what what I wanted to achieve. Even after the services were provided, Talon Legal was proactive in checking in with me to ensure my business was prospering. I have sent my friends and other entrepreneurs to them and every single one was very happy. Approximate cost: $4500
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DP123 profile picture
DP123
12 July 2025
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Clear advice in a very stressful time I was in a very stressful situation and Talon Legal fixed my problem - now my stress is gone! Very professional, excellent communication, accessible and fast. Thank you for everything.
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Slavi77 profile picture
Slavi77
12 July 2025
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They won my hardship appeal Was about to lose my licence and Talon Legal got it back. Made a promise and kept it. This is what a lawyer should be like. Helped me with my driving disqualification and other driving offences. Very prepared and explaining things very good so I could understand them easily.
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Emir profile picture
Emir
2 July 2025
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Very good criminal lawyer They were honest and did what they said they would do and told me what to expect it was like following a map and I felt safe because I know what to expect very happy with the experience Talon. If I need lawyer again I will come back.
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Samsun profile picture
Samsun
28 June 2025
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Got the best result for me Easy to deal with and spoke to me in normal English, explained everything really good to me, didn’t go over agreed budget to help with my case and communicated all the time with me, never kept me waiting and very responsive to my questions, had direct access to my lawyer anytime I needed. Got very good result for my case for drinking and driving, disqualified driving, demerit points and provisional driver licence condition
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Rogue33 profile picture
Rogue33
26 June 2025
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Very good experience best money ever spent on a lawyer Professional, friendly and fixed fee service. I had some charges in court in Adelaide and Talon Legal completely picked apart the case against me. Charges were removed and I got my licence back too. Cant recommend them strongly enough. Really easy to work with and friendly. Thanks for wining my licence appeal and getting the drink driving charges removed.
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Riggo7
24 June 2025
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Saved my drivers license Can’t thank the team enough at Talon Legal for helping me keep my drivers license. They were very knowledgeable and took the time to explain everything to me every step of the way. If it wasn’t for their excellent representation in court I would have lost my license. They left no stone unturned. Highly recommend.
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Karen R. profile picture
Karen R.
24 June 2025
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Best lawyers for traffic offences in adelaide Really appreciate Talon Legal’s help to keep my license, thank you so much to the team. Professional, responsive and compassionate service from everyone at the office and excellent outcome. Would definitely recommend. Approximate cost: $2800
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Les A. profile picture
Les A.
23 June 2025
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Excellent traffic lawyers I owe them my life and job words are not enough to say how thankful i am for the help they gave me when i was going to lose the driver licence in magistrates court because of drink driving and drug driving. Approximate cost: $3000
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Jordan profile picture
Jordan
22 June 2025
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Best Lawyers! Absolutely first-class service from Talon Legal. I had a complicated traffic matter and wasn’t sure where to turn. From the first phone call, they were professional, understanding, and gave me clear advice without the legal jargon. On the day of court, they were calm and prepared and the result spoke for itself. I’m so grateful for their help and wouldn’t hesitate to recommend them to anyone needing help with a traffic offence.
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S A. profile picture
S A.
17 June 2025
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Brilliant traffic lawyers in adelaide Helped me get my licence back in the magistrates court after I applied for a licence appeal because I breached my provisional conditions. Made it straightforward and helped me stay calm. Treated me like a normal person and was very compassionate. You saved my job legends Approximate cost: $1800
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SA profile picture
SA
16 June 2025
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Successful drivers licence appeal! Made the process really easy for me to understand and helped me appeal my licence in the magistrates after it was disqualified for breaching a licence condition. Thank you legends, I would have been stuffed if I lost my licence without you guns!
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TK profile picture
TK
5 April 2025
Truelocal star 1Truelocal star 2Truelocal star 3Truelocal star 4Truelocal star 5Trustindex verifies that the original source of the review is True Local.
Best traffic lawyers in Adelaide I came across talon legal when I was looking for a law firm in Adelaide to represent me for traffic offences while visiting from overseas. They were very professional, fast, friendly and down to earth. Dan handled my mater and got me a very good outcome at a fixed cost.

Does the Privacy Act apply to a business using AI?

Yes, if the Act covers the business at all. An APP entity must not breach an APP (section 15). The OAIC’s Guidance on privacy and the use of commercially available AI products (21 October 2024, updated 17 January 2025) says the Privacy Act applies to all uses of AI involving personal information.

Small businesses are generally outside the Act. A business with annual turnover of $3,000,000 or less for the previous financial year is a small business (section 6D(1)), and a small business operator is not an organisation bound by the APPs (section 6C). The exemption is lost by a business that provides a health service and holds health information, other than in an employee record. It is also lost by one that discloses personal information for a benefit, service or advantage, or provides one to collect personal information from anyone else (section 6D(4)(b) to (d)). A small business whose AI product sells user data, or discloses it for another benefit, is covered that way.

Where in doubt, the OAIC’s Guidance on privacy and developing and training generative AI models (21 October 2024, updated 23 October 2024) says to assume the Privacy Act applies. The data protection and privacy guide explains who the Act covers.


Are AI outputs and inferences personal information?

Often, yes. Personal information is information or an opinion about an identified or reasonably identifiable individual (section 6(1)). It counts whether true or not, and whether recorded in a material form or not. An AI output about a named customer can be personal information even when it is wrong.

The OAIC’s Guidance on privacy and the use of commercially available AI products (21 October 2024, updated 17 January 2025) says privacy obligations apply to personal information put into an AI system. They also apply to AI output that contains personal information. The guidance says inferred, incorrect or artificially generated information about an identifiable person is personal information. Its examples are hallucinations and deepfakes. It also says that generating or inferring personal information with AI, including images, is a collection that must comply with APP 3. The guidance says such a collection must be reasonably necessary and done by lawful and fair means. On that view, a tool that profiles customers is collecting personal information.

Under APP 3.2, an organisation must not collect personal information, other than sensitive information, unless it is reasonably necessary for one or more of its functions or activities. Sensitive information also needs consent, unless APP 3.4 applies (APP 3.3). The question is whether the business needs what the tool infers.


Can staff put personal information into an AI tool?

Only within APP 6. Personal information collected for a primary purpose must not be used or disclosed for a secondary purpose unless the person consents or an exception applies (APP 6.1). One exception covers a use or disclosure the person would reasonably expect, if it is related to the primary purpose (APP 6.2(a)). For sensitive information it must be directly related. Another exception covers uses required or authorised by law (APP 6.2(b)).

The OAIC’s Guidance on privacy and the use of commercially available AI products (21 October 2024, updated 17 January 2025) says this rule applies to inputting personal information into an AI system. The guidance adds that setting the use out in a collection notice and the privacy policy can bear on what people reasonably expect. Its best-practice recommendation is not to enter personal information, particularly sensitive information, into publicly available generative AI tools. It also recommends due diligence before adopting a product, covering testing for the intended uses, human oversight, privacy and security risks, and who can access the personal information. The guidance recommends policies and procedures for AI use as well.

The vendor’s terms settle much of this, as the AI contracts and data licensing guide explains. For staff, the practical control is a written AI use policy. It should name the approved tools and say what information may go into them. Outputs should be checked before anyone relies on them.

Client information can be confidential as well as personal. Equity protects confidential information against actual or threatened misuse without consent. The information must be identified with specificity and have the necessary quality of confidence. It must also have been received in circumstances importing an obligation of confidence (Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21 at [39]). That protection does not depend on the Privacy Act, so it can bind a small business the Act does not cover.


What must a privacy policy say about AI?

The APPs set the contents. The OAIC’s Guidance on privacy and the use of commercially available AI products (21 October 2024, updated 17 January 2025) says businesses should update privacy policies and notifications with clear information about their use of AI. It also says public-facing AI tools, such as chatbots, should be clearly identified as such.

An APP entity must have a clearly expressed and up-to-date APP privacy policy (APP 1.3). The policy must cover the kinds of personal information collected and held, how and why, how to seek access and correction, and how to complain. It must also say whether information is likely to be disclosed overseas and, if practicable, to which countries (APP 1.4). A breach of APP 1.3 or 1.4 carries up to 200 penalty units, and infringement and compliance notices are available (section 13K(1) and (4)).


What changes for automated decisions from 10 December 2026?

From 10 December 2026, privacy policies must explain certain automated decisions. Schedule 1 Part 15 of the Privacy and Other Legislation Amendment Act 2024 inserts APP 1.7 to 1.9 from 10 December 2026.

From 10 December 2026, an APP privacy policy must contain the APP 1.8 information if three things are true (APP 1.7):

  • The entity has arranged for one or more computer programs to make a decision, or to do a thing substantially and directly related to making one.
  • The decision could reasonably be expected to significantly affect the rights or interests of an individual.
  • Personal information about the individual is used in the operation of those computer programs to make the decision or do that thing.

From 10 December 2026, the policy must then set out three things (APP 1.8):

  • The kinds of personal information used in the operation of such computer programs.
  • The kinds of such decisions made solely by the operation of such computer programs.
  • The kinds of such decisions for which a thing substantially and directly related to making the decision is done by such computer programs.

From 10 December 2026, APP 1.9 widens these terms. Making a decision includes refusing or failing to make one, and doing a thing includes refusing or failing to do it. Rights or interests may be affected adversely or beneficially. One example is a decision under an Act or legislative instrument to grant or refuse a benefit. Another is a decision affecting rights under a contract, agreement or arrangement. A third is a decision affecting access to a significant service or support.

From 10 December 2026, the rules apply to decisions made after commencement (item 89). That is so even if the arrangement, the use of the information or its acquisition came earlier, so systems already running are caught from 10 December 2026. APP 1.7 is also added, from 10 December 2026, to the APPs whose breach can attract an infringement or compliance notice under section 13K (item 87).

To prepare for 10 December 2026, a business using AI to approve, refuse, price or rank people should list the decisions that could significantly affect them, and draft the policy wording.


Can a business train AI on personal information it holds?

Only if APP 6 allows the new use. Suppose training was not a primary purpose of collection. The OAIC’s Guidance on privacy and developing and training generative AI models (21 October 2024, updated 23 October 2024) then says the business needs consent, or reasonable expectation and relatedness, or another exception. Where that cannot be clearly established, it says to seek consent, offer a meaningful and informed opt-out, or both. The guidance makes five further points:

  • Publicly available or accessible data is not automatically lawful to use to train or fine-tune a model. Check it for personal information.
  • Sensitive information generally requires consent. Many photographs or recordings of people, including artificially generated ones, contain sensitive information.
  • Developers must take reasonable steps towards accuracy, such as high quality datasets and testing. Disclaimers may be appropriate.
  • APPs 1, 3, 5, 6 and 10 are particularly relevant, and APPs 8, 11, 12 and 13 are also relevant.
  • Privacy by design and a privacy impact assessment are recommended.

What security does an AI system need?

Reasonable steps, as for any system holding personal information. An APP entity must take reasonable steps to protect personal information from misuse, interference and loss, and from unauthorised access, modification or disclosure (APP 11.1). Those steps include technical and organisational measures (APP 11.3). An entity must also take reasonable steps to destroy or de-identify information it no longer needs for any permitted purpose. That does not apply to information in a Commonwealth record, or that an Australian law or a court or tribunal order requires it to keep (APP 11.2).

An entity holds personal information if it has possession or control of a record containing it (section 6(1)). Prompt logs and uploaded files can therefore be held information.

The obligation was considered in Australian Information Commissioner v Australian Clinical Labs Limited (No 2) [2025] FCA 1224. Halley J said APP 11.1(b) requires steps reasonable in the circumstances to protect personal information from unauthorised access, modification or disclosure ([49]). The standard is objective, and the circumstances are broadly construed ([50]). They could include the sensitivity of the information, the potential harm and the entity’s size and sophistication. They could also include the cybersecurity environment and previous threats or attacks. Overreliance on third-party providers, without adequate procedures of its own to detect and respond, was one reason the company fell short ([52](g)).

If an AI vendor holding the business’s personal information is breached, the Notifiable Data Breaches scheme can apply to the business (section 26WE). The cyber incident response guide covers the 30-day assessment and notification.


What if the AI vendor is overseas?

APP 8 will usually apply. The OAIC’s APP Guidelines, chapter 8 (updated 3 October 2025), say that engaging an overseas contractor to perform services is, in most circumstances, a disclosure. In limited cases, where a binding contract keeps the business in effective control of the information, providing it may be a use instead.

Before disclosing personal information to an overseas recipient, a business must take reasonable steps so that the recipient does not breach the APPs, other than APP 1 (APP 8.1). APP 8.1 does not apply where the business reasonably believes the recipient is subject to a law or binding scheme that protects the information in a way at least substantially similar to the APPs (APP 8.2(a)). The individual must be able to access mechanisms to enforce that protection.

Where APP 8.1 applied to the disclosure and the APPs do not otherwise apply to the recipient, section 16C applies. An act of the recipient that would breach the APPs (other than APP 1) is taken to be the business’s act, and its breach. Where APP 8.1 applied and the vendor holds the information, Part IIIC applies as if the business held it (section 26WC(1)). The vendor contract should settle data location, use of inputs, subcontractors and breach notice, as the data security clauses guide explains.


What are the penalties?

The Privacy Act has three tiers of civil penalty.

ContraventionProvisionMaximum
Serious interference with privacySection 13GBody corporate: the greatest of $50,000,000, three times the benefit if it can be determined, or otherwise 30% of adjusted turnover during the breach turnover period. Anyone else: $2,500,000
Interference with privacySection 13H2,000 penalty units
Breach of APP 1.3 or 1.4, and from 10 December 2026 APP 1.7Section 13K200 penalty units, with infringement and compliance notices

These figures are current to 7 November 2026. If a court is not satisfied that an interference was serious, it may order a section 13H penalty (section 13J).

Scale multiplies exposure. In Clinical Labs, the parties agreed, and the Court was satisfied, that there was a separate contravention for each of the more than 223,000 individuals whose information was held on the affected systems ([60]). The Court approved agreed penalties totalling $5,800,000 for three kinds of contravention, $4,200,000 of it for failing to take reasonable steps to protect personal information (orders). An AI system that processes many people’s information carries the same arithmetic.


Can individuals sue for a serious invasion of privacy?

Yes, since 10 June 2025, under Schedule 2 of the Privacy Act. The individual must show an invasion of privacy by intrusion upon seclusion or misuse of information relating to them. There must have been a reasonable expectation of privacy in all the circumstances, and the invasion must have been intentional or reckless, and serious. The public interest in privacy must also outweigh any countervailing public interest (clause 7(1)). Proof of damage is not needed (clause 7(2)).

Damages for non-economic loss and exemplary damages together are capped at the greater of $478,550 and the defamation cap for non-economic loss (clause 11(5)). Proceedings must be started before the earlier of one year after the plaintiff became aware of the invasion and three years after it. A plaintiff who was under 18 at the time must start before their 21st birthday. The court may extend time, but not beyond 6 years after the invasion (clause 14). An AI use that misuses information about a person could found the action if every element is met.


How similar matters tend to play out

Illustrations of how the law on this page combines on ordinary facts, not predictions. Outcome depends on the facts, the evidence and the regulator.

Lower range. A real estate agency with turnover over $3,000,000 finds that property managers paste tenants’ names and arrears into a free public chatbot to draft reminder letters. The OAIC’s Guidance on privacy and the use of commercially available AI products (21 October 2024, updated 17 January 2025) says APP 6 applies to that input. It recommends against entering personal information into publicly available generative AI tools. Whether tenants would reasonably expect it is doubtful (APP 6.2(a)). Moving staff to an approved business tool under a written policy lowers the risk.

Middle range. An online retailer’s website chatbot answers order questions and keeps transcripts. The retailer then uses them to infer customers’ likely income for targeted offers. The OAIC’s Guidance on privacy and the use of commercially available AI products (21 October 2024, updated 17 January 2025) says that inference is a collection. It must then be reasonably necessary for the retailer’s functions or activities (APP 3.2). The guidance also says the chatbot should be identified as AI. The privacy policy must state the purposes for which the retailer collects personal information (APP 1.3 and 1.4).

Upper range. A car subscription business uses an overseas vendor’s AI model, fine-tuned on its records of past subscribers, to approve or refuse applications. From 10 December 2026, if those decisions could reasonably be expected to significantly affect applicants, its privacy policy must describe them (APP 1.7 and 1.8), even though the system started earlier (item 89). The fine-tuning needs consent or another APP 6 basis. If APP 8.1 applied to the disclosure and the APPs do not otherwise apply to the vendor, its breach of the APPs is taken to be the business’s own (section 16C). A serious interference by a body corporate carries the section 13G maximums.


How we act on AI and privacy

Our AI privacy lawyers act for businesses adopting AI tools and for those building them. The aim is a documented basis under the APPs for each AI use, and a privacy policy that meets the rules that apply from 10 December 2026.

StageWhat happensWhat we do
MappingThe business lists its AI tools and the personal information each uses or produces.Identify the APPs that apply to each use, including collection by inference.
Vendor reviewA tool is chosen or renewed.Review the terms on use of inputs, storage location, security and breach notice.
PoliciesStaff start using AI tools.Draft the AI use policy, and update the privacy policy and collection notices.
Automated decisionsSoftware makes or supports decisions about people.Advise whether the rules that apply from 10 December 2026 catch them, and draft the policy wording.
TrainingA model is trained or fine-tuned on data the business holds.Advise on the APP 6 basis, consent or opt-out, and the privacy impact assessment.

We cannot promise an outcome, and no lawyer can. We can make sure each AI use has a documented basis under the APPs before the regulator asks for one.

Free Consultation. Book a same-day free 30-minute consultation, or call (08) 7094 2021 now.


AI and privacy case law

No case on this page concerned an AI tool.

CaseCourtPrinciplePinpoint
Australian Information Commissioner v Australian Clinical Labs Limited (No 2) [2025] FCA 1224Federal CourtReasonable steps to protect personal information; a contravention for each individual[49], [50], [52](g), [60]
Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21Full Federal CourtEquitable obligations of confidence survive a contractual definition[29], [37], [39]

Case notes

Australian Information Commissioner v Australian Clinical Labs Limited (No 2) [2025] FCA 1224

The company consented to declarations including that it failed to take reasonable steps to protect personal information on systems it had acquired. Halley J approved agreed penalties of $5,800,000 for three kinds of contravention, $4,200,000 of it for that failure ([7], orders). The steps required are those reasonable in the circumstances, judged objectively ([49], [50]). Overreliance on third-party providers was one reason the company fell short ([52](g)), and there was a separate contravention for each of more than 223,000 individuals ([60]).

Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21

The Full Court held that an exhaustive contractual definition of confidential information did not show an intention to exclude equitable duties of confidence ([29]). The agreement preserved equitable rights ([37]). The Court set out the four elements of breach of confidence in equity ([39]) and gave judgment for Optus on its claim in equity.


Frequently asked questions

Does the Privacy Act apply to AI tools?

Yes, for businesses the Act covers. An APP entity must not breach an APP (section 15), whatever tools it uses.

Can staff paste customer details into ChatGPT or other AI chatbots?

Only within APP 6. The OAIC’s Guidance on privacy and the use of commercially available AI products (21 October 2024, updated 17 January 2025) recommends not entering personal information, particularly sensitive information, into publicly available generative AI tools.

Is information an AI tool makes up about a person personal information?

Yes, if the person is identified or reasonably identifiable. Personal information includes information or an opinion, whether true or not (section 6(1)).

What must a privacy policy say about automated decisions from 10 December 2026?

From 10 December 2026, it must set out the kinds of personal information used by computer programs that make decisions which could reasonably be expected to significantly affect people. From 10 December 2026, it must also set out the kinds of those decisions (APP 1.7 and 1.8).

Do the rules from 10 December 2026 apply to AI systems already in use?

Yes. From 10 December 2026, they apply to decisions made after commencement, even if the arrangement or the information came earlier (item 89).

Can a business use customer data to train an AI model?

Only with consent or another APP 6 basis. Where that cannot be clearly established, the OAIC’s Guidance on privacy and developing and training generative AI models (21 October 2024, updated 23 October 2024) says to seek consent, offer a meaningful and informed opt-out, or both.

Is publicly available personal information free to use for AI training?

Not automatically under the Privacy Act. The OAIC’s Guidance on privacy and developing and training generative AI models (21 October 2024, updated 23 October 2024) says publicly available or accessible data is not automatically lawful to use to train or fine-tune a model.

Does an AI project need a privacy impact assessment?

The OAIC’s Guidance on privacy and developing and training generative AI models (21 October 2024, updated 23 October 2024) recommends one, together with privacy by design.

What if an AI vendor stores data overseas?

If the vendor is outside Australia, a business bound by the APPs must, before disclosing personal information to it, take reasonable steps so that the vendor does not breach the APPs (APP 8.1). APP 1 is excluded from that duty. Where the APPs do not otherwise apply to the vendor, its act that would breach them is taken to be the business’s (section 16C).

Do small businesses have to comply?

Generally not, if annual turnover is $3,000,000 or less, unless an exception applies, such as disclosing personal information for a benefit (section 6D).

Do I need an AI privacy lawyer?

For an AI tool that handles customer information, or software that makes decisions about people, yes. An AI privacy lawyer can map each use against the APPs and draft the privacy policy wording required from 10 December 2026. A free 30-minute consultation will tell you where you stand.


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