A court ban on government using data from travel cards to track people has serious implications for companies

  • An expert says companies should take head of a NSW court’s ruling against the use of personal data to track Opal card users
  • A former deputy NSW Privacy Commissioner says the implications are “profound” for the use of big data.
  • Transport for NSW, via the state’s Crown Solicitor’s Office, has lodged an appeal.

A court ruling that using personal information to track the movements of individual Opal card users in NSW is unlawful has broad implications for corporate Australia and the collection and application of so-called big data.

The NSW Civil and Administrative Tribunal this week ruled that collecting and using personal information from Gold Opal cards, which are used by seniors entitled to a concession, is a breach of the Privacy and Personal Information Protection (PPIP) Act.

“Transport for NSW is in the process of reviewing the decision handed down by the Civil and Administrative Tribunal to determine next steps,” a spokesman told Business Insider.

However, paperwork lodged with the tribunal shows Transport for NSW, via the state’s Crown Solicitor’s Office, lodged an appeal against the decision on Thursday night – the same day the full judgment was handed down.

Separately, the state has applied for a stay on the tribunal’s orders while the appeal is heard.

Nigel Waters, who brought the case against Transport for NSW, told Business Insider: “I am still assessing my capacity to fight on.”

He started the action in 2016. Waters, a life member and a former board member of the Australian Privacy Foundation, is entitled to a Gold Opal because he is aged over 60 and works less than 20 hours a week.


He didn’t mind the registration process to prove eligibility to claim a seniors’ concession nor did he object to demonstrating his entitlement when challenged by a ticket inspector.

However, Waters did object to a record of his travel, clearly linked to his identity, being kept. He wanted to be able to use public transport anonymously in the same way as non-concession Opal card users could.

Those with an unregistered standard non-concessional Opal card, one linked to a credit card or bank account, don’t need to provide any personal information.

However, the personal details of those holding Gold Opal cards are recorded, giving a state government agency, Transport for NSW, the ability to track the movements of individuals as they use the public transport system.

Transport for NSW has previously confirmed that it has given the personal information of dozens of Opal card users to Police and the Department of Immigration.

Anna Johnston, a lawyer, a former deputy NSW Privacy Commissioner and a director of Salinger Privacy, says the case is a wake-up call to organisations about privacy.

She says the implications of this case of over-collecting passengers’ personal information are “profound”.

Just putting up a notice, or listing terms and conditions, on a website isn’t enough, and Johnston says making people click to “agree” to privacy policy is pointless.

“Much of the value of big data is built on our digital breadcrumbs — the digital traces we leave behind as we go about our day-to-day activities like travelling to work, buying goods, using social media or searching the web,” she says.

“But if an organisation does not have a sound reason for collecting those breadcrumbs — in other words, if collecting our data is not reasonably necessary for the primary purpose for which we were transacting in the first place (getting on a bus, buying a pair of shoes, chatting to our friends on Facebook) — then it might not be able to lawfully collect it at all.”

She says passengers entitled to a concession fare should be entitled to the same choice as full-fare-paying customers already enjoy, which is being able choose to be anonymous.

“Offering all passengers, no matter how much they pay for their public transport, the option to travel about this fair city without an arm of Government knowing where they are is what the Government originally said it would do,” says Johnston.

“It’s what the Privacy Commissioner told them to do. And now, thanks to one unrepresented but determined senior citizen, it’s what the Tribunal has said they must do, in order to comply with the law.

Transport for NSW launched the Gold Opal card in 2014, providing eligible seniors and pensioners a daily fare cap at $2.50 per day, rather than $15.40 cap for adult Opal Card holders.