The Australian Privacy Commissioner has published a determination concerning the use of facial recognition technology (FRT) by Kmart to tackle refund fraud between 2020 and 2022.
In Commissioner Initiated Investigation into Kmart Australia Limited (Privacy) [2025] AICmr 155, the Commissioner concluded that the use by Kmart of FRT at 28 of its retail stores did not comply with Australia’s Privacy Act, as it was not necessary or proportionate in the circumstances.
The FRT system used video feed from Closed Circuit Television (CCTV) cameras to capture, in real time, the facial images of all individuals who entered a relevant store and all individuals who presented at the returns service desk of a relevant store during the relevant period.
The Commissioner found that:
- the individuals did not consent to the collection of the information, contrary to APP 3.3; and
- Kmart failed to take such steps as were reasonable in the circumstances to notify or otherwise ensure those individuals were aware about the relevant APP 5.2 matters; and
- Kmart breached APP 1.3 by failing to include in its privacy policies information about the kinds of personal information that it collected and held, and how it collected and held that personal information, as required by APP 1.4(a) and APP 1.4(b).
Kmart was ordered:
- to publicise the decision including advice to individuals about how they may contact it to find out more information and how to make a complaint if they wish; and
- to retain all personal information and sensitive information obtained or generated through the FRT system that it still holds, including any images, biometric information, personal information, and information in relation to the use of the FRT system for 12 months; and
- to the extent permitted by law, destroy all personal information the subject of the declaration 12 months and one day after the publication.
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Author: David Jacobson
Principal, Bright Corporate Law
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About David Jacobson
The information contained in this article is not legal advice. It is not to be relied upon as a full statement of the law. You should seek professional advice for your specific needs and circumstances before acting or relying on any of the content.
