Section 32: Voluntary Undertaking

Quick summary

What Section 32 says

• Sub-section (1) — the Board may accept a voluntary undertaking in respect of any matter related to observance of the Act's provisions, from any person at any stage of a proceeding under Section 28.
• Sub-section (2) — the voluntary undertaking referred to in sub-section (1) may include an undertaking to take specified action within a time the Board determines, or to refrain from taking specified action, and/or to publicise the undertaking.
• Sub-section (3) — the Board may, after accepting the voluntary undertaking and with the consent of the person who gave it, vary the terms included in it.
• Sub-section (4) — acceptance of the voluntary undertaking by the Board constitutes a bar on proceedings under the Act's provisions as regards the contents of the undertaking, except in cases covered by sub-section (5).
• Sub-section (5) — where a person fails to adhere to any term of the voluntary undertaking accepted by the Board, that failure is deemed to be a breach of the Act's provisions, and the Board may, after giving that person an opportunity of being heard, proceed in accordance with Section 33.

Breaking it down

This section creates something like a settlement mechanism within the Board's own inquiry process — letting a person under investigation proactively commit to fixing the underlying issue, rather than the matter necessarily running all the way through to a penalty determination.

Timing is flexible — an undertaking can come at any stage of a proceeding. Sub-section (1) doesn't restrict when during a Section 28 inquiry a voluntary undertaking can be offered and accepted, giving both sides room to resolve matters early or later in the process as circumstances develop.

The content of an undertaking is flexible too. Sub-section (2) allows for affirmative commitments (taking specific action), negative commitments (refraining from certain action), and a publicity element — potentially useful where transparency about a corrective commitment itself serves a public purpose.

Once accepted, an undertaking creates real legal certainty for the person who gave it. Sub-section (4)'s bar on further proceedings about the same contents means accepting an undertaking isn't just a symbolic gesture — it genuinely forecloses further Board action on that specific matter, giving a strong incentive to use this mechanism where appropriate.

But that certainty is conditional on actually following through. Sub-section (5) makes clear the bar isn't unconditional — failing to adhere to the undertaking's own terms is itself treated as a fresh breach of the Act, triggering the Section 33 penalty process, after a hearing.

Why this section matters

A rigid enforcement process that only ever ends in either a full exoneration or a formal penalty misses an important middle path: an organisation that recognises an issue and is prepared to proactively fix it. Section 32 gives the Board a tool to accept that kind of good-faith commitment, resolving matters more constructively while still keeping a real consequence (the Section 33 penalty route) in reserve if the commitment isn't honoured.

Real-world example

Who needs to care about this section

• Data Fiduciaries under Board inquiry — a voluntary undertaking can be a constructive alternative to a full adversarial process through to penalty.
• Compliance and legal teams managing a Board proceeding — understanding both the certainty an accepted undertaking provides, and the real consequence of failing to honour it.

Common questions

Related sections