BJP19 (as Litigation Guardian for BJQ19) v Office of the Australian Information Commissioner
[2019] FCA 618
•3 May 2019
FEDERAL COURT OF AUSTRALIA
BJP19 (as Litigation Guardian for BJQ19) v Office of the Australian Information Commissioner [2019] FCA 618
File number: VID 210 of 2019 Judge: KERR J Date of judgment: 3 May 2019 Catchwords: PRACTICE AND PROCEDURE – application for suppression order pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) – public interest in open justice – where applicant a child – order made suppressing name of applicant and litigation guardian
PRACTICE AND PROCEDURE – whether proceedings should be transferred to the Federal Circuit Court of Australia pursuant to s 32AB(1) of the FCA Act – where application for judicial review does not raise questions of general importance – where factors weigh in favour of transferring proceedings
Legislation: Federal Court of Australia Act 1976 (Cth) ss 32AB, 37AF, 37AG, 37AI Date of hearing: heard and determined on the papers Date of last submissions: 12 April 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 44 Counsel for the Applicant: The litigation guardian appeared in person Counsel for the Respondent: Ms E Arduca Solicitor for the Respondent: Australian Government Solicitor ORDERS
VID 210 of 2019 BETWEEN: BJP19 (AS LITIGATION GAURDIAN FOR BJQ19)
Applicant
AND: OFFICE OF THE AUSTRALIAN INFORMATION COMMISSIONER
Respondent
JUDGE:
KERR J
DATE OF ORDER:
3 MAY 2019
THE COURT ORDERS THAT:
1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the names of the applicant and the applicant’s litigation representative be prohibited from publication, save as between the parties, unless otherwise ordered by this Court or the Federal Circuit Court of Australia.
2.The names of the applicant and her litigation guardian be redacted in any material that is provided to non-parties pursuant to any access request.
3.The matter be transferred to the Federal Circuit Court of Australia pursuant to s 32AB of the FCA Act.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KERR J:
This is an application for judicial review of a decision made by the Office of the Australian Information Commissioner (the Commissioner) not to investigate a complaint.
The applicant (BJQ19) is a six-year-old girl. I made orders on 2 April 2107 appointing her mother (BJP19) as her litigation representative.
The terms of the complaint made by the applicant to the Commissioner is not presently before the Court but the response made on behalf of the Commissioner dated 4 February 2019 is. From the Commissioner’s response, I infer that the applicant, represented by her mother, made a complaint alleging that the private school at which she was a pupil, had interfered with her privacy by:
·inappropriately collecting videos and photos of her and her schoolwork;
·publishing or displaying those images publicly, for example at school assemblies and the school’s annual art exhibition;
·not providing access to all personal information the school held about her; and
·improperly retaining her school assignments and images of her.
When the matter came before me for a first directions hearing the applicant’s litigation representative pressed for a suppression order (as had been sought in the applicant’s application) to conceal the identity of the applicant and her immediate family.
Because the applicant was a young girl and her application stemmed from concerns regarding her privacy, I held it was proper to make an interim order pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) prohibiting the names of the applicant and the applicant’s litigation representative from publication without further order of the Court.
Once such an interim order is made the Court is required to determine the substantive application as a matter of urgency: see s 37AI(2) of the FCA Act.
I therefore made orders giving leave to the applicant and the respondent to file and serve any affidavits upon which they would wish to rely and submissions directed to whether or not a substantive suppression order pursuant to s 37AF of the FCA Act ought to be made.
I also gave leave to the parties to file and serve submissions as to whether it would be appropriate in the Court’s exercise of its discretion to order that the application be transferred to the Federal Circuit Court of Australia pursuant to s 32AB of the FCA Act.
I indicated that I would make decisions in relation to those two matters on the papers.
The suppression issue
Section 37AF of the FCA Act provides that the Court may make a suppression or non-publication order on grounds permitted by Part VAA of that Act.
Section 37AG of the FCA Act is as follows:
37AG Grounds for making an order
(1)The Court may make a suppression order or non-publication order on one or more of the following grounds:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c) the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a party to or a witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
(2)A suppression order or non-publication order must specify the ground or grounds on which the order is made.
The applicant’s litigation representative filed an affidavit in the following terms:
2.The decision to be reviewed concerns a privacy complaint made by the Applicant to the Respondent.
3.The Applicant is a child of six years of age.
4.The Applicant’s personal information or even sensitive information will become part of the case. Examples of such information may include the following:
1)photos and videos taken by the school without the Applicant’s permission and, in some cases, even without her knowledge when she was learning and playing: such information may assist the Court to decide whether students’ photos and videos are reasonably necessary for the functions and activities of the school and whether the school should have the right to keep them indefinitely;
2)videos taken by the school without the Applicant’s consent and, in some cases, even without her knowledge of her performing such as playing a musical instrument and singing: such information may assist the Court to decide whether the means of its collection is lawful and fair and whether the information is reasonably necessary for the functions and activities of the school;
3)the Applicant’s works that would show how well or how poorly she has mastered the content in certain areas of learning at a certain age: such information may assist the Court to decide whether students’ assignments and assessments are students’ personal information;
5.The Applicant is a shy little girl. The Applicant always opted out for [sic] having her images published by the school. The Applicant would like to be able to learn and play at school without worrying about whether how she has learned and played will be watched and viewed by whoever and whenever even without her knowing it. She feels that every child deserves a private sphere in which to grow and learn. She was disappointed at what the school and the Respondent have done in this regard and she is being very brave to originate this case for her belief in what is right, not just for herself but also for every other child in the country. But she feels that she will be very embarrassed if information, photos and images about how she learned and played as a little child are to be accessed by the public, commented on or even laughed at. She does not want to have a life like that and feels that such a life is the opposite of what she desires. It was a difficult and brave decision by her to commence this proceeding.
6.It is common practice among private schools that enrolment is at the sole discretion of the principal: no reason is needed for denial. The terms of enrolment of the Applicant’s school serves as an example. The disclosure of the Applicant’s identity would adversely affect her prospect of getting enrolled in private schools in the future as schools are not used to being scrutinised for their compliance and the Applicant would be regarded as a troublemaker.
7.There is cross reference in the facts in this case and a VCAT case where the Applicant’s identity was concealed by a suppression order. That reference is relevant to this case because it is in support of two grounds of application. Without a suppression order in this case to conceal the Applicant’s identity I cannot elicit such evidence for two reasons: first, by doing so I would in effect disclose the Applicant’s identity to the public in contravention of the VCAT suppression order; second, by doing so the Applicant would lose the protection of the VCAT suppression order, which would be against her interests. But if I do not elicit such evidence the Applicant’s case would be weakened.
8.Some of the Applicant’s works are very creative and of a high standard and an expert suggested they could be published.
The applicant’s litigation representatives filed written submissions as follows:
The Application
1. The Applicant applies for a suppression order to conceal the identity of her and her immediate family and to conceal her original work should such work become part of the case. The scope of the suppression order should include any matter, including the name, the address and images etc, that identifies the Applicant or is likely to lead to the Applicant being identified. The application is made under s 37AG of the Federal Court of Australia Act 1976 (Cth), on the ground that the order is necessary to prevent prejudice to the proper administration of justice, and under the Court's power to regulate its proceedings in the interests of justice.
The Nature of the Proceeding
2.The Applicant is a six-year-old child and the decision to be reviewed concerns her privacy complaint made to the Respondent. The suppression order is justified because of her age and the nature and purpose of the case.
The Open Justice Principle and Exceptions to that Principle
3.The principle of open justice is balanced by the right to privacy and the privacy of a child has been of paramount consideration in child related proceedings. It is an offence under the Crimes Act 1914 (Cth) s 15YR(1) to publish, without leave, information which identifies a child witness or child complainant or ‘is likely to lead to’ the child being identified as such. Similar provisions include Family Law Act 1975 (Cth) s 121 and Child Support (Registration and Collection) Act 1988 (Cth) s110X. Proceedings in children's courts are generally prohibited from publication; for example Children, Youth and Families Act 2005 (Vic) s 534. See also the observations of Gibbs CJ referred to below.
4.In the originating application, one of the grounds of application is that the decision was induced or affected by fraud. The Applicant has pleaded various misrepresentations by the school that the Respondent relied on in making its decision. Under s 65(3) of the Privacy Act 1980 (Cth) it is an offence to knowingly furnish the Respondent [sic] false or misleading information. Thus the Applicant is the complainant/witness and victim of the alleged offence. The identity of a child that is related to a criminal proceeding is concealed from the public on many occasions, for example, Children (Criminal Proceedings) Act 1978 (NSW) s15A.
Why the order should be made
5.First, the case is about protection of the privacy of a child. The very purpose of the Applicant’s action is to obtain a private sphere in which she can grow, learn and play at school. But without the suppression order the Applicant will either have to limit significantly what evidence she can bring forward to advance her case or personal and even sensitive information of the Applicant will become part of the case and available to the public. The latter would make the Applicant very embarrassed and would nullify the purpose of the case and deflect the Applicant from continuing the case. Dixon J in AS v Minister for Immigration and Border Protection [2014] VSC 486 summarised categories of cases where pseudonym orders have been made at common law and they include ‘cases involving children’ and ‘cases where the plaintiff would reasonably be deterred from bringing proceedings without a pseudonym order’.
6.Second, the Applicant’s complaint made to the Respondent is about the interference of her privacy by the school. Schools as education and care providers are relied on heavily by children, their families and the community and play a significant role to ensure that children’s rights and interests including their right to privacy, property rights and copyright are protected. The schools’ role is the more significant because most school-aged children spend much of their waking hours in schools or school related activities. Had an issue with respect to the protection and care of a child arose in the family setting the case would go to a children’s court and the identity of the child would be concealed. In some cases such a matter would come to the Family Court and the child’s identity would be concealed as well. Had the practice been otherwise it would affect the parties’ ability and willingness to bring forward evidence to do justice to the merits of their case and it would deter potential parties from bringing their cases to the Court. There is public interest in ensuring that children, as some of the most vulnerable members of the community, receive the protection and care that law affords them. All of the above considerations that parliament has acknowledged and embedded in family law and child protection legislation apply in the present matter. Further, practices of the school interfere with the Applicant’s learning and playing by taking photos and videos without her permission, on a daily basis, over years. The school’s practices also deprive the Applicant of access to her own work for up to a year. In other words, long term constant interference of privacy and arbitrary deprivation of property have caused significant frustration and mental and emotional harm to the Applicant. Thus this proceeding shares some common features with a children’s court or family court proceeding and should have the same protection of children’s privacy.
7.Third, some evidence in support of two grounds of application is also part of a VCAT case where the identity of the Applicant is concealed by a suppression order. Without the suppression order sought eliciting the evidence in this case would lead to identification of the Applicant in the VCAT case in breach of the VCAT suppression order. But not eliciting the evidence would weaken the Applicant’s case and prejudice the proper administration of justice in this court.
8.Fourth, Article 14(1) of International Covenant on Civil and Political Rights includes two exceptions to open justice: ‘when the interest of the private lives of the parties so requires’ and ‘where the interest of juvenile persons otherwise requires’. In the present matter, in order to protect her privacy at school the Applicant, a six-year-old child, needs a suppression order to conceal her identity so that she can bring forward the evidence in support of her case.
9.Fifth, Sir Harry Gibbs CJ, observed in Russell v Russell (1976) 134 CLR 495, p520, ‘Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public: and the category of exceptions is not closed to the Parliament. The need to maintain secrecy or confidentiality in the interests of privacy or delicacy may in some cases be thought to render it desirable for a matter, or part of it, to be heard in closed court.’ The privacy and delicacy of the Applicant’s case does render it desirable for deviation from open justice. But the Applicant is only seeking a suppression order to conceal her identity. The proceeding is otherwise open to the public and for public reporting. As to the Applicant’s original work, if the Applicant obtains the suppression order to conceal her identity and also presents some of her original work to the court as evidence then without a suppression order to conceal such work from the public the Applicant will find it difficult to publish her work later without disclosing her identity in the case.
10.Australia has ratified the Convention on the Right of the Child and is obligated to act consistently with the Convention. Article 3(1) “In all actions concerning children...the best interest of the child shall be a primary consideration”. Article 16(1) “No child shall be subject to arbitrary or unlawful interference with his or her privacy...(2) The child has the right to the protection of the law against such interference…” Article 18 (2) “For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.”
The respondent submitted as follows:
1.The applicant seeks the making of orders pursuant to section 37AF of the Federal Court of Australia Act 1976 (the Act) and has filed written submissions dated 8 April 2019 (AS) and an affidavit of [BJP19] affirmed on 8 April 2019 (Affidavit) in support.
2.The respondent understands the applicant seeks an order for non-publication of the names of the applicant and the applicant’s litigation representative, which is currently the subject of an interim order pursuant to s 37AI. The applicant also seeks a suppression order over “addresses and images etc, that identifies the applicant or is likely to lead to the Applicant being identified” and over the applicant’s “original work”.
3.Section 37AF(1) of the Act provides that the Court “may make a suppression or nonpublication order on grounds permitted by this Part”. Section 37AA provides that a nonpublication order is an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information). A suppression order is an order that prohibits or restricts the disclosure of information (by publication or otherwise).
4.Section 37AE of the Act provides that, in deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
5.An order may be made pursuant to s 37AF on one or more of the grounds set out in s 37AG of the Act. The ground relied upon by the Applicant is that the orders are “necessary to prevent prejudice to the proper administration of justice”: s 37AG(1)(a); AS at [1]. The authorities make clear that the requirement of necessity in the grounds under s 37AG is a high threshold. Mere embarrassment or inconvenience does not suffice: Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607 at [30] (See AS at [5]; Affidavit at [5]).
6.With respect to photos and videos of the applicant, and the applicant’s works, the respondent notes that confidentiality orders are not usually made in the absence of the Court seeing the information which is said to be confidential: Australian Competition and Consumer Commission v Valve Corp (No 5) [2016] FCA 741 at [2]. Further, the respondent considers that the need for an applicant to adduce fresh evidence would ordinarily be limited in an application for judicial review: see, for example, Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93 at [51]-[55].
7.With respect to the VCAT proceeding, the respondent is not aware of the details of that proceeding or the terms of any suppression order made, and is therefore not in a position to comment on any overlap between the present case and that proceeding (See AS at [7]; Affidavit at [7]).
8.Bearing in mind the applicant’s age and the nature of the proceeding, the respondent does not oppose the Court making an order pursuant to s 37AF that the names of the applicant and the applicant's litigation representative be prohibited from publication, save as between the parties, without further order of the Court. However, whether or not the Court is satisfied that the applicant has adduced sufficiently cogent evidence to establish the ground under s 37AG(1)(a) on which to make this order, or any additional orders sought, is ultimately a matter for the Court’s discretion.
Having regard to the nature of these proceedings and the party bringing them, the Court is satisfied that it is necessary to prevent prejudice to the interests of justice that an order substantially in the form made on 2 April 2019 on an interim basis should now be made on a continuing basis pursuant to s 37AF of the FCA Act.
The interests of justice, in the Court’s opinion, extend to enabling a child of tender years to bring proceedings relating to an allegation of a failure in the Commissioner lawfully to address a complaint they had made regarding their privacy, without having their name being made public. A child should not be required to sacrifice more of his or her privacy than is essential for the Court to undertake its judicial functions in a manner that is transparent to the public. In my opinion, at least in this particular instance, that will not require the child or her mother to be identified.
Accordingly, this proceeding should go forward with the names of the applicant and her litigation representative prohibited from publication. In these reasons and in any future filings in these proceedings, their names are to be replaced with appropriate pseudonyms and any request by a non-party for access to materials filed in the proceedings should be acceded to only on the basis that the names of the applicant and her litigation representative are redacted.
However I am unpersuaded that I ought to make any broader order.
I accept the respondent’s submission at [5] that the authorities binding on this Court make clear that the requirement of necessity provided for in s 37AG of the FCA Act is a high threshold.
The applicant asserts that the Commissioner erred in law in declining to have regard to her complaint(s). In the ordinary course, such an application is determined by examining only what was raised in the complaint and, having regard to its nature, whether the Commissioner erred in the exercise of her statutory duty. The scope of judicial review is confined to that question.
The Court will not be exercising de novo merits review. The respondent is correct to submit that the occasion for the admission of fresh evidence, if any, will be limited.
There is no reason to anticipate that in this proceeding either the applicant or the respondent will be entitled to adduce or put into evidence anything such as photographs or video material that might identify the applicant or her litigation representative.
The particulars of fraud as are asserted at [35]-[41] of the applicant’s grounds of application do not require a different conclusion. The applicant alleges in those paragraphs that certain statements made by the school were false and misled the Commissioner in respect of the school’s policy and its application. Even assuming that the truth or otherwise of those statements might properly become the subject of evidence, I presently apprehend their proof or disproof would not require the production of any photograph, video or film as would identify the applicant.
As noted, the Court does not have the applicant’s complaint before it but nothing in the Commissioner’s response to it or the submissions advanced by the applicant suggests it was made otherwise than in writing. In those circumstances, I am not satisfied that it is necessary in the interests of justice to make an order beyond that the names of the applicant and the applicant’s litigation representative will be protected.
The applicant has not established a basis for the Court to apprehend that any previous proceedings in the Victorian Civil and Administrative Tribunal would be relevantly in issue.
If subsequently, a party successfully seeks to adduce evidence of a photograph or video as would permit the applicant to be identified, an application for a suppression order can be made at the relevant time. It would not be appropriate to anticipate what would appear to be only a remote possibility with a blanket order.
Any application is to be dealt with as it arises and on its merits.
A party that brings proceedings in the Federal Court of Australia must do so on the understanding that the Court has a duty to safeguard the public interest in open justice. While the applicant in this case brings a proceeding relating to their privacy, the public nonetheless must be confident, and the law requires, that any judicial review of the conduct of the Commissioner will be conducted in an open and transparent manner.
Should the Court make an order transferring this proceeding to the Federal Circuit Court of Australia?
Section 32AB of the FCA Act provides that, subject to the terms of that section and the Rules, if a proceeding is pending the Court may, on its own initiative or on the application of a party, transfer the proceeding from this Court to the Federal Circuit Court of Australia.
The submissions of the litigation representative were as follows:
1.The Court is considering whether to exercise its discretion under s 32AB of the Federal Court of Australia Act 1976 (Cth) (the Act) to transfer, on its own initiative, the present proceeding to the Federal Circuit Court. The Applicant submits that the present proceeding should remain in the Federal Court for reasons listed below.
2.First, there are no proceedings in respect of an associated matter pending in the Federal Circuit Court (s 32AB(6)(b) of the Act).
3.Second, the present proceeding is likely to involve questions of general importance (s27.12 (3)(a) of the Federal Court Rules 2011 (Cth) (the Rules)).
4.In Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 the Federal Magistrate Court examined what constituted a question of general importance and said that it might arise where the issue to be determined is of general importance to the public at large or a significant class of persons or type or series of cases. The decision to be reviewed concerns a child student’s complaint about the privacy practices at her school. In dealing with the complaint, the Respondent, the statutory authority established under the Privacy Act 1988 (Cth) (the Privacy Act), was unsure about the meaning of parts of the statute and favoured the interpretation advanced by the school. The proper extant of the protection of students’ privacy at school according to law is a matter of general importance. It is also a matter of general importance that the Respondent be clear about the correct interpretation of the statute and remain unbiased in performing its statutory functions. The Applicant did not find relevant cases in this area and what the Privacy Act entails in the context of the obligations of schools to students is of general importance. Further, the school’s privacy practices in the Applicant’s complaint allegedly not only interfere with students’ privacy but also infringe on students’ property rights and copyright. Both privacy and property rights are recognised as basic human rights in Victoria: Charter of Human Rights and Responsibilities Act 2006 (Vic) s13 and s20. The protection of children's privacy and property falls under Australia's international obligation under the Convention on the Rights of the Child which forms Schedule 3 of the Australian Human Right Commission Act 1986 (Cth) and the Child Protection Convention which forms Schedule 1 of the Family Law Act 1975 (Cth). So does the protection of children’s right to education. When schools only provide education in ways that interfere with students’ privacy students’ right to education is compromised. When teachers spend a lot of time taking and organising photos and videos of students instead of teaching the quality of teaching is affected and so does the students’ learning as they are bothered and distracted. Further, teachers teach through their acts and are viewed as role models by students. There is public interest in ensuring that interference of privacy, disregard of property or disrespect to the rule of law in general do not become the content of school education. So much is apparent from both commonwealth and state legislation: the Australian Education Act 2013 (Cth) s 75(5) and the Education and Training Reform Act 2006 (Vic) s 1.2.1 for example. The wellbeing of children and the quality of school education affect the future of our society and are of general importance to the public at large.
5.In Mason &Anor v Methodist ladies College [2009] FMCA 570, the Federal Magistrates Court ordered the transfer of proceedings to the Federal Court. The issues of general importance identified include the application of Disability Standards for Education 2005 (Cth) (the Standards) in the context of the obligations of educational institutions to students with disability [7]-[8], the alleged right of disabled persons and disabled students to be educated in accordance with the Standards in both the state and private school system [9] and issues associated with the proper construction of not only the Standards but also the Human Rights and Equal Opportunity Commission Act 1986 (Cth), the Disability Discrimination Act 2005 (Cth) and the applicable international convention [11]-[12].
6.In Genovese, another circumstance where a question of general importance might arise is where significant human rights issues are at stake. As mentioned in paragraph above, in the present proceeding three basic human rights of children are at stake: privacy, property rights and education.
7.A third category listed in Genovese that is relevant in the present proceeding is where an issue as to the proper construction of legislation arises: Baumer v R (1988) 166 CLR 51. Several issues as to the proper construction of the Privacy Act arise in the present proceeding. Due to the page limit, the Applicant only lists the following three.
8.First, the meaning of ‘personal information’ in s 6 of the Privacy Act. Both the Respondent and the school failed to recognise that students’ assignments and assessments are students’ personal information. Both seemed to agree that some assignments and assessments may be personal information and acknowledged that it is difficult to formulate a test to determine the matter. The current authority on the subject is Privacy Commissioner v Telstra Corporation limited [2017] FCAFC 4. It, many would agree, threw up more questions than answers because it concerned what the Court described as a “very narrow question of statutory construction” and not “when metadata would be about ‘an individual’”. The decision does not go beyond determining that no words in the legislation should be ignored. The current proceeding provides an opportunity for the Court to examine the definition of ‘personal information’ in the Privacy Act after the 2014 amendments and provide guidance as to when certain information is ‘about an individual’. The proper construction of the definition of ‘personal information’ defines the scope of the obligations of APP entities.
9.Second, the jurisdiction of the Respondent under APP 3. The Respondent denied that it has jurisdiction over property or copyright even when there is alleged infringement in the privacy practice of an APP entity. S 3.5 of APP 3 says “An APP entity must collect personal information only by lawful and fair means”. The Applicant submits that APP 3 gives the Respondent incidental jurisdiction implied by the provision.
10.Third, the Respondent’s discretionary powers under s 41(1)(a) and s 41(2)(a). The Respondent exercised both concurrently in dismissing the Applicant’s complaint. The Applicant submits that such is not intended by the Privacy Act.
11.Another category listed in Genovese is where some important or exceptional point of principle arises: Veen v R (1979) 143 CLR 458 at 461 per Stephen J, 468 per Mason J and 497-498 per Aickin J. In Veen, the High Court gave special leave to appeal against sentence, observing the principle of protection of the community and the principle of proportionality are balanced in the case of manslaughter by a twenty-year-old with diminished responsibility. In the present proceeding, the two counter balancing principles are protection of children’s rights and interests and autonomy of schools. The alleged bias by the Respondent demonstrated its struggle. Further the Respondent said without qualification, ‘the Privacy Act does not regulate how the School performs its functions regarding marking or assessing student work’. Are schools above laws? ‘The notion ...has never received acceptance from the courts, but courts have traditionally shown a reluctance to intervene internal school matters.” “Schools are often viewed as self-enclosed communities, part of a separate sphere governed by their own ideology, rules and priorities ...The school world is resistant to interference from other disciplines such as the social services and the law.”
12.The final category in Genovese is where the particular law or the case law concerning that area is, “an area of some complexity”: Spencer & Rutherford v Horizon Holidays & Ors [2006] FMCA 386 at [7] per Connolly FM. There are at least three areas of complexity in the present proceeding. First, the school’s practices, which the Respondent endorsed, suggested a loophole in the Privacy Act. The Respondent is of the view that the Privacy Act does not limit the amount of personal information an entity collects and the school is denying access to and refusing to delete and de-identify personal information on the ground that it is not reasonable due to the size of the work. Second, there is a need to reconcile different practices in government and private schools. Both schools share the same functions and activities and the commonwealth and state privacy legislations are consistent. Government schools in Victoria are required by government compliance policy to provide students the option of not having their photos taken. Private schools, according to the Respondent, are not by the Privacy Act. The Applicant submits that a careful examination of both the Privacy Act and relevant legislation on education will reveal the opposite. Third, the law of property and copyright applied in the context of school gives rise to some novel questions.
13.Third, it would not be less expensive or more convenient to the Applicant if the proceeding were transferred (s 27.12 (3)(b) of the Rules). The Applicant, being a child, is exempted from court fees. The Applicant, being self-represented, does not incur costs on her side. The Federal Circuit Court and the Federal Court in Melbourne share the same facilities so the location of the former is not more convenient.
14.Fourth, there is no evidence suggesting that the proceeding would be determined more quickly if transferred (s 27.12 (3)(c) of the Rules).
15.Fifth, it is the wish of the Applicant to keep the proceeding in the Federal Court and the Respondent did not make an application for the transfer (s27.12(3)(d) of the Rules).
16.Sixth, it is in the interests of the administration of justice (s 32AB (6)(d) of the Act). Both parties as well as the general public will benefit from the Court’s help with the following issues: the meaning of personal information, the reasonably necessary test in the Privacy Act, the jurisdiction of the Respondent with regard to lawful and fair collection of personal information and the property rights and copyright of students.
17.Seventh, S 32AB does not apply to criminal proceedings (s32 AB (9A) of the Act) while the present proceeding involves an alleged offence under s 65(3) of the Privacy Act that is the school knowingly furnished the Respondent false or misleading information. There is a criminal element in the present proceeding.
18.Eighth, during the hearing the Court expressed as its major concern for the transfer whether the resources of the Court should be spent on the task of fact finding. The present proceeding will involve little, if any, disputed issues of fact. As far as the Applicant can foresee, almost all of the relevant facts would be found in email correspondence between the parties and with the school and personal information of the Applicant. There is not a lot of evidence and almost all of it is readily available and should be agreed.
(Footnotes omitted.)
The respondent took a neutral position. The Commissioner submitted:
2.For the reasons set out below, the respondent considers that while the matter could appropriately remain in the Federal Court, it does not oppose the transfer of the proceedings to the Federal Circuit Court, if the Court is minded to so order.
PART I RELEVANT PROVISIONS
3.Pursuant to s 32AB(1) of the Act, if a proceeding is pending in the Court, the Court may, by order, transfer the proceeding from the Court to the Federal Circuit Court. The Court may do so on its own initiative: s 32AB(2)(b).
4.Section 32AB(6) provides that in deciding whether to transfer a proceeding to the Federal Circuit Court under s 32AB(1), the Court must have regard to:
4.1whether proceedings in respect of an associated matter are pending in the Federal Circuit Court; and
4.2whether the resources of the Federal Circuit Court are sufficient to hear and determine the proceeding; and
4.3 the interests of the administration of justice.
5.Section 32AB(6) also provides that the Court must have regard to the Rules of the Court made for the purposes of s 32AB(4). Rule 27.12(3) of the Federal Court Rules 2011 (the Rules) provides the following factors to be taken into account by the Court in deciding whether to transfer a proceeding:
5.1whether the proceeding is likely to involve questions of general importance;
5.2whether it would be less expensive and more convenient to the parties if the proceeding were transferred;
5.3whether the proceeding would be determined more quickly if transferred; and
5.4 the wishes of the parties.
6.An appeal does not lie from a decision of the Court in relation to the transfer of a proceeding under s 32AB(1): s 32AB(8).
PART II RESPONDENT’S SUBMISSIONS
Section 32AB(6) considerations
7. Regarding the s 32AB(6) considerations, the respondent submits:
7.1To the respondent’s knowledge, there are no proceedings in respect of an associated matter that are pending in the Federal Circuit Court: s 32AB(6)(b).
7.2Noting the respondent considers that the matter is likely to require a one-day hearing, the resources of the Federal Circuit Court would be sufficient to hear and determine the proceeding: s 32AB(6)(c).
7.3The interests of the administration of justice does not weigh either for or against the transfer of proceeding: s 32AB(6)(d).
Rule 27.12(3) factors
8.The respondent considers the proceeding is unlikely to involve questions of general importance: r 27.12(3)(a). The proceeding is an application for judicial review of a decision under s 41 of the Privacy Act 1988 (Cth) (Privacy Act) to decline to investigate a complaint. The applicant seeks an order quashing the respondent’s decision and remitting it back for reconsideration according to law and declarations. The applicant raises 14 grounds of review. The Federal Court previously has considered the application of s 41(1) of the Privacy Act in the context of the former National Privacy Principles: see Jones v Office of the Australian Information Commissioner [2014] FCA 285; Ogawa v Australian Information Commissioner [2015] FCA 152 and Ogawa v Australian Information Commissioner [2018] FCA 266. The Federal Circuit Court previously has considered the application of a similar provision in the Freedom of Information Act 1982 (Cth) (FOI Act): see Powell & Anor v Australian Information Commissioner & Anor [2019] FCCA 39 which concerned a decision not to continue to undertake a review under s 54W(b) of the FOI Act. The respondent considers that the legal issues arising in the application are capable of resolution by the Federal Circuit Court.
9.The respondent considers that the expense and convenience to the parties does not weigh either for or against the transfer of proceeding: r 27.12(3)(b). It is not apparent to the respondent that there would be any cost or efficiency advantage to the respondent or the applicant if the matter were transferred. The respondent notes that orders have not yet been made providing for a timetable to prepare the matter for hearing and, in the absence of agreement between the parties, one further listing may be required before the final hearing, whether or not the matter is transferred to the Federal Circuit Court.
10.The respondent is uncertain whether the proceeding would be determined more quickly if transferred to the Federal Circuit Court, as this will depend on judicial availability. However, there is no reason to suggest that any hearing would be delayed if the matter were transferred to the Federal Circuit Court.
11.Bearing in mind the above considerations, the respondent does not oppose transfer of the proceedings to the Federal Circuit Court if the Court is minded to so order: r 27.12(3)(d).
The FCA and the Rules prescribe a number of relevant factors that I am obliged to give consideration to. I address those factors as follows.
The applicant opposes this proceeding being transferred. The respondent does not.
On the necessarily impressionistic basis required to decide whether an order transferring this matter to the Federal Circuit Court should be made, I am presently unpersuaded that the grounds of review referred to at [9] of the litigation representative’s submissions to the effect that the Commissioner has incidental jurisdiction over matters of copyright law are more than colourable. However, I make no finding in that regard. Nevertheless, I am satisfied that if the ground referred to in that paragraph is capable of being properly maintained, it will not be beyond the capacity of a judge of the Federal Circuit Court to hear and determine it.
I reject that I should proceed on the basis that there is an analogy between any ground of review pressed in these proceedings and criminal proceedings as the litigation representative appears to submit at [17] of her submissions.
I do not accept the submission advanced on behalf of the applicant that her application involves questions of general importance not already the subject of judicial authority. I proceed on the basis, as the respondent submits, that the legal principles relevant to the National Privacy Principles and judicial review of a decision of the Commissioner not to accept a complaint have been the subject of consideration and decision both by this Court and the Federal Circuit Court.
I am satisfied that the legal issues arising in the application will be capable of resolution by the Federal Circuit Court.
I have no basis to conclude that it will be less expensive were the proceedings transferred but I am satisfied it would be more convenient to the parties were I to do so.
That is because I have formed the view that this proceeding will require active case management prior to hearing. The parties appear not to be ad idem even as to the scope of the proceeding. There is a question as to whether the school ought to be joined.
My experience of the first directions hearing, conducted by video link, leads me to conclude that the use of that technology may present difficulties for the case management of this particular matter. I am satisfied that further interlocutory proceedings would be best conducted before a judge in person. This matter is in my docket in the Hobart registry of the Court. The parties are in Melbourne. Having regard to what I have stated at [37] above, I do not apprehend that that would require me to arrange for the transfer of this matter to the docket of another judge of this Court.
I cannot be certain whether my transferring this application to the Federal Circuit Court will allow the matter to be determined more quickly. However I have enquired of the Chief Justice of that court as to whether a suitable judge in Melbourne will be available to hear this matter were it to be transferred the Federal Circuit Court and I have been assured that arrangements can be made in that regard. Having made that enquiry, I am satisfied that for the purposes of s 32AB(1) that the resources of the Federal Circuit Court are sufficient to hear and determine the proceeding.
I am not aware of any associated pending matters either in this Court or in the Federal Circuit Court.
In my opinion, the balance of those factors weighs in favour of the Court making an order, in the exercise of its discretion, that this application be transferred to the Federal Circuit Court of Australia pursuant to s 32AB of the FCA Act. I will make that order.
The orders I make regarding the non-publication of the parties names will continue to apply unless otherwise ordered by this Court or the Federal Circuit Court of Australia. Whether the school should be joined and, if so, in what capacity, is a matter to be dealt with by the judge of the Federal Circuit Court who is allocated this proceeding.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr. Associate:
Dated: 3 May 2019
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