EQ v Office of the Australian Information Commissioner (Freedom of Information)

[2016] AATA 785

EQ and Office of the Australian Information Commissioner (Freedom of information) [2016] AATA 785 (6 October 2016)

Division	FREEDOM OF INFORMATION DIVISION
File Number	2015/0782
Re	EQ
APPLICANT
And	Office of the Australian Information Commissioner
RESPONDENT
And	Great Barrier Reef Marine Park Authority
JOINED PARTY

DECISION

Tribunal	A G Melick AO RFD SC, Deputy President
Date	6 October 2016
Place	Hobart

The Tribunal affirms the decision of the Respondent in relation to the three alleged breaches but sets aside the award of damages of $5000 for the established second breach and substitutes therefor an award of $8000.

......................................................................

Privacy – Privacy Act 1988 - Compensation – Decision to award compensation for interference with privacy of individual – Disclosure of personal information by Commonwealth officers to third parties – Jurisdiction over State officers acting under Commonwealth law – Amount of compensation – Decision affirmed but compensation amount varied.

Legislation

Australian Information Commissioner Act 2010 s 5(2)

Australian Public Service Act 1999

Great Barrier Reef Marine Park Act 1975 s 61AFA

Marine Parks Act 2004 (Qld)

Privacy Act 1988 s 52

Privacy Amendment (Enhancing Privacy Protection) Act 2012

Secondary materials

Great Barrier Reef Marine Park Regulations 1983 reg 122H

Cases

Chapman v Hearse (1961) 106 CLR 112

‘CP’ and Department of Defence [2014] AICmr 88

Dell v Dalton (1991) 23 NSWLR 528

‘DK’ and Telstra Corporation Limited [2014] AICmr 118

Graham v Baker (1961) 106 340

Livingstone v Rawyards Coal Company (1880) 5 App Cas 25; HL 1880

March v Stramare (E and MH) Pty Ltd [1991] HCA 12; 171 CLR 506

McCracken v Melbourne Storm Rugby League Club Limited and Ors [2007] NSWCA 353

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No1) [1961] 1 All ER 404

Re Rummery and Federal Privacy Commissioner 85 ALD 368

Uren v John Fairfax and Sons Pty Ltd [1966] HCA 40; 117 CLR 118

Whitfield v De Lauret & Co. Ltd [1920] HCA 75; (1920) CLR 71

REASONS FOR DECISION

A G Melick AO RFD SC, Deputy President

BACKGROUND

1. In 2013, the Applicant was employed by James Cook University (JCU) on a casual basis as a Marine Conservation research assistant. On 27 February 2013 he was caught fishing in a Marine National Park Green Zone by rangers from the Queensland Parks and Wildlife Service (QPWS).

2. QPWS provided an incident report to the Joined Party, the Great Barrier Reef Marine Park Authority (the Authority) and officers of the Authority interviewed the Applicant on 5 April 2013. The Applicant always maintained that he had been inadvertently misled because insufficient or inaccurate data as to marine park boundaries was contained in his vessel’s navigation systems.

3. Thereafter a series of media events took place:

   (a)Around 1 pm on 5 April 2013 the Applicant's employer was contacted about the incident by a journalist;

   (b)Around 3 pm on 5 April 2013 the Authority received a request by email for information from News Corp Australia;

   (c)On 6 April 2013 an officer of the Authority responded to News Corp Australia's email, naming the Applicant;

   (d)On 7 April 2013, The Courier-Mail newspaper published an article about the incident including information which was the same as disclosed to News Corp Australia in the 6 April 2013 email sent by the officer of the Authority;

   (e)On 8 April 2013 the Applicant received an infringement notice for the breach of Authority regulations;

   (f)On 10 April 2013 The Townsville Bulletin newspaper published a story about the incident including information disclosed in the 6 April 2013 response by the Authority’s officer;

   (g)On 19 April 2013 the Applicant requested that the Authority withdraw the infringement notice and on 9 May 2013 the Authority declined to withdraw the infringement notice, giving reasons for its refusal to so do; and

   (h)In July 2013 the Queensland Seafood Industry Association (QSIA) published an article in its newsletter relating to the incident including information disclosed by the Authority on 6 April 2013 as well as a disclosure by the Authority’s “compliance area” that the Applicant had been issued with an infringement notice and fined $1700.

4. As a result of these disclosures on 5 and 6 April 2013 the Applicant was forced to resign from his employment and was not able to resume work with JCU until June 2013.  However, as a result of the July 2013 publication by QSIA the Applicant was once again suspended from his casual employment with JCU.

5. On the 20 September 2013 the Applicant lodged a complaint against the Authority with the Respondent in which he alleged that the Authority had interfered with his privacy by disclosing personal information to third parties. The complaint alleged three breaches by the Authority:

   (a)The Authority or QPWS as the agent of the Authority, disclosed the Applicant's personal information to News Corp Australia on or before 5 April 2013;

   (b)The Authority disclosed the Applicant's personal information to News Corp Australia on 6 April 2013; and

   (c)The Authority disclosed the Applicant's personal information to the QSIA in or before July 2013.

6. The Authority acknowledged that it had provided the confirmation to The Courier-Mail, a newspaper owned by News Corp Australia, but maintained that it had not released the Applicant's personal information to QSIA.

7. The matter was not resolved through conciliation and the Respondent decided to determine the matter pursuant to section 52 of the Privacy Act 1988 (the Privacy Act).

8. On 2 February 2015 the Respondent determined that the Authority had interfered with the Applicant's privacy by disclosure that was not authorised by Information Privacy Principle 11.1 of the Privacy Act.

9. This determination related to the second of the three alleged breaches set out in paragraph 5 above and the Respondent also noted that it had insufficient information to find that the Authority had made the disclosures relevant to the first and third alleged breaches.

10. A determination was made pursuant to subsection 52(1)(b)(iii) of the Privacy Act to redress the damage suffered by the Applicant, in the sum of $5000.

11. The Applicant then sought to review the Respondent’s determination in relation to the first and third alleged breaches as well as the amount of ‘compensation’ awarded.

    PROPER RESPONDENT

12. Pursuant to sub-section 5(2) of the Australian Information Commissioner Act 2010 (the AIC Act), the Office of the Australian information Commissioner (OAIC) is comprised of the information officers ( which are the Information Commissioner, Privacy Commissioner and the Freedom of information Commissioner) and the staff of the OAIC. The Information Commissioner is the head of that Statutory Agency and the decision-maker under the Privacy Act and hence the Information or Privacy Commissioner should be the proper Respondent. As the Respondent did not take issue with this point I did not order a substitution of the title of the Respondent.

    RELEVANT LAW

13. The Privacy Act was amended on 12 March 2014 by the Privacy Amendment (Enhancing Privacy Protection) Act 2012. The amendments replaced the Information Privacy Principles (IPPs) with the Australian Privacy Principles. As the complaint by the Applicant related to conduct that pre-dated the amendments, the complaint was handled in accordance with the Privacy Act, including the IPPs, in effect at the time.

14. Accordingly the Respondent had to determine whether the Authority had handled the Applicant's personal information in such a way that it complied with, or breached, IPP 11 which provides:

    Principle 11- limits on disclosure of personal information

    1.A record-keeper who has possession or control of a record that contains personal information shall not disclose information to a person, body or agency (other than the individual concerned) unless:

    (a)the individual concerned is likely to have been aware, or made aware under Principle 2, that information of that kind is usually passed to that person, body or agency;

    (b)         the individual concerned has consented to the disclosure;

    (c)the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to life or health of the individual concerned or of another person;

    (d)         the disclosure is required or authorised by or under law; or

    (e)the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.

    2.Where personal information is disclosed for the purposes of enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the purpose of the protection of the public revenue, the record-keeper shall include in the record containing that information a note of the disclosure.

    3.A person, body or agency to whom personal information is disclosed under clause 1 of this Principle shall not use or disclose information for a purpose other than the purpose which the information was given to the person, body or agency.

    First alleged breach

    The Authority, or QPWS as the agent of the Authority, disclosed the Applicant's personal information to News Corp Australia on or before 5 April 2013.

15. On the information available the Respondent was unable to determine who was responsible for the alleged breach. It was clear that there had been a breach and the breach was most likely the result of actions by the Authority or QPWS. However, on the information available it was impossible to determine the source.

16. A considerable amount of further information has become available since the Respondent made his determination as a result of the Applicant obtaining a significant number of documents by issuing a series of summonses.

    The relevant evidence can be summarised as follows:

    (a)A QPWS employee, Mr Shane Hunter, who was appointed as an inspector by the Great Barrier Marine Park Authority emailed an Authority Compliance Incident Report to the Authority's compliance unit with attachments which included:

    (i)associated photographs of the Applicant trolling on the research vessel;

    (ii)a copy of the Applicant's coxswains certificate;

    (iii)a map of the location where the Applicant was apprehended; and

    (iv)Inspector notes with the Applicant's private details including name, address, phone number and identification details.

    (b)In addition to the Authority's compliance unit, Mr Hunter copied his email to three other people, two of whom had not been appointed as inspectors by the Authority. It was contended that this was in contravention of the Authority’s Compliance Management and Investigation Procedures and that the two addressees who had not been appointed as inspectors would not have had the required training or awareness of the Authority’s privacy protocols.

    (c)Mr Hunter's email was not marked “In Confidence” and did not have the required disclaimer about only being for the use of the Authority.

    (d)Around 3 pm on 5 April 2013, the Authority’s communication section received a request for information from a political correspondent from News Corp Australia. The request was by email which named the Applicant and noted that the inquirer had information in relation to an incident in the Great Barrier Reef Marine Park in which the Applicant had been caught by Queensland government authorities fishing in a green zone.

    (e)On 7 April 2013 The Sunday Mail newspaper published a story about the incident.

    (f)It was obvious from the wording in the Sunday Mail article that the information published was based upon (and in many respects was identical to) Mr Hunter's incident report as well as information provided by the Authority on 6 April 2013 which is as such as the second alleged breach.

17. The Applicant maintained that, had Mr Hunter followed the Authority’s protocols, the unsecured email would not have been readily available to third parties.

18. Furthermore the Applicant contended that as Mr Hunter was either an agent or employee of the Authority they were responsible for the first alleged breach.

19. In my view the additional evidence did not take the matter any further as it is likely that either the authority or QPWS were responsible for this breach.  However, I am unable to determine which entity was responsible.

20. Despite the Applicant's contentions I find that the Authority could not be responsible for the actions of an employee of  QPWS for the following reasons:

    (a)The Authority’s employees are engaged under the Australian Public Service Act 1999 (the APS Act) whereas QPWS personnel are Queensland State employees.

    (b)The APS Act sets out the disciplinary arrangements in relation to public servants under the APS Code of Conduct and those arrangements do not extend to Queensland State employees.

    (c)Although QPWS employees can be appointed inspectors pursuant to subsections 43 and 43A(3) of the Great Barrier Marine Park Act 1975 in addition to any appointment under section 52 of the Marine Parks Act 2004 (Qld), they remain State, and not Commonwealth employees, and in effect are State employees with the ability to exercise some powers pursuant to Commonwealth legislation.

    (d)A copy of the relevant inter-governmental agreement was before the Tribunal as annexure DHAL01 to the affidavit of the Authority’s Chief Information Officer, David Alfred John Leverton. That agreement makes it quite clear that officers of the QPWS remain State employees and are not employees or contractors of the Authority.

    (e)As such I have no jurisdiction over their behaviour although, in appropriate circumstances, they could be dealt with pursuant to relevant Queensland legislation.

    Accordingly, as I cannot be satisfied as to which officer was responsible, I affirm the Respondent’s finding in relation to the first alleged breach.

    Second alleged breach

    The Authority disclosed the Applicant's personal information to News Corporation Australia on 6 April 2013.

21. On 6 April 2013 an officer from the Authority’s Communication Section Centre responded to the enquiry referred to in paragraph 3(d) above in the following terms:

    Our response to your query is as follows (please attribute to a Great Barrier Reef Marine Park Authority spokesperson):

    ….

    GBRMPA is currently investigating a matter of fishing in a Marine National Park Zone from a James Cook University research vessel. However, we do not comment on matters currently under investigation;

    The time which it is taking to consider the matter relating to [EQ] is well inside the standard amount of time it takes to investigate such matters.

22. The Respondent found the second alleged breach proved and the Authority does not dispute this finding.  I agree that this breach was proved.

23. I will deal with the question of the appropriate compensation later in this decision.

    Third alleged breach

    The Authority disclosed the Applicant's personal information to the QSIA in or before July 2013.

24. On 8 April 2013 the Authority sent the Applicant a letter enclosing infringement notice for breach of the Authority regulations imposing a penalty of $1700.

25. On 19 April 2013 the Applicant made a written request under regulation 122H of the regulations for the withdrawal of the infringement notice.

26. On 9 May 2013 the Authority declined to withdraw the infringement notice and gave reasons for so doing. Upon being assured that the matter would remain confidential and that the only people who would know the result were the Authority’s Field Management Unit officers and the Applicant, the Applicant paid the fine, rather than attempting to mount a defence of ‘honest and reasonable mistake of fact.’

27. The first time that it was publicly disclosed that the Applicant had been fined was in the July 2013 newsletter article published by QSIA. As result of the Applicant’s complaints to the Respondent, the Respondent made relevant inquiries and was informed by QSIA that they had confirmed with the Authority’s compliance area that the Applicant was issued with an infringement notice with a penalty of $1700.

28. The Respondent determined that there was insufficient evidence before him to find that the Authority had disclosed the Applicant’s personal information to QSIA because, inter alia, even if he found that an Authority officer disclosed the information, there was insufficient information to find that the officer disclosed information in performance of his duties such that can be taken to be an act of GBRMPA.

29. However at the hearing it was conceded by the Authority that they had, by the actions of one of their employees (a Ms Volhand), supplied information to QSIA and accordingly disclosed the Applicant's personal information in breach of the relevant privacy principles.

30. The matter then became complicated by appropriate observations from the Respondent to the effect that the Authority’s concession was wrong in law because they were in fact authorised by the relevant legislation to disclose that information. A further complication later arose in that it was discovered that Ms Volhand, although in a position which made her eligible to hold a delegation pursuant to section 61AFA, did not hold such a delegation. These observations were made at the conclusion of the hearing which was then adjourned to allow for written submissions.

31. Counsel for the Authority reconsidered his position and then, at my request, filed written submissions in which he not inappropriately withdrew the concessions made in relation to the third alleged breach.

32. At the heart of this hearing is the application of section 61AFA of the Great Barrier ReefMarine Park Act 1975 to the current matter. Section 61AFA provides:

    Publicising offences and contraventions

    (1)  The Minister or the Authority may publicise, any way the minister’s authority thinks appropriate, any or all of the following:

    (a)  an offence against this act of which a person has been convicted;

    (b)  a contravention of a civil penalty provision in respect of which a declaration of contravention has been made against a person or for which a person has been required to pay a pecuniary penalty;

    (c)  a penalty imposed by a person for an offence or contravention of a civil penalty provision.

    (2)  This section does not:

    (a)limit the Minister’s or Authority’s powers to publicise an offence against or in contravention of this Act; or

    (b)prevent anyone else from publicising an offence against or contravention of this Act; or

    (c)affect any obligation (however imposed) on anyone to publicise an offence against the contravention of this Act.

33. Counsel for the Authority, Mr Davidson, succinctly set out in his submissions relevant factors to be considered when interpreting section 61AFA including the basis of the Authority's previous interpretation of that section.

34. I set out relevant parts of his submissions as follows:

    “Relevant Facts

    4. The Applicant was issued with an infringement notice for a breach of reg. 73BA of the Great Barrier Reef Marine Park Regulations 1983 (the Regulations). That regulation creates an offence of fishing in a Marine National Park Zone without permission. Regulation 189 explains that a breach of reg. 73BA is an 'infringement notice offence'. An offence under the Regulations is an offence for the purposes of the Act: s 3GBRMP Act (definition of 'this Act').

    5. The Applicant in this case paid the fine on the infringement notice. The effect of this is that his liability is discharged and there is no conviction: reg 197. This means s. 61A FA(1)(a) is not applicable in this case. Regulation 73BA is not a civil penalty provision, meanings 61A FA(1)(b) is also irrelevant. The only real question is the application of para (1) (c).

    6. Factually, the disclosure in the third alleged breach was a disclosure of the fact and quantum of the payment made by the Applicant in respect of the offence.

    Interpretation of s 61AFA

    7. Section 61AFA has not been the subject of judicial or Tribunal consideration. GBRMPA has not previously sought a detailed opinion on its interpretation. To date, GBRMPA has read para. (1)(c) as being subject to an implied limitation – namely, that it be read consistently with para (1)(a) as requiring a conviction. There is some support for that interpretation in the explanatory memorandum to the provision, which states:

    Item 125 establishes a subdivision empowering the Minister and Authority to publicise the fact that a person has been convicted of an offence or found to have contravened a civil penalty provision and the penalty that was imposed. This additional sanction is intended to enhance deterrence, particularly in relation to commercial Marine Park users whose marketing includes promotion of an environmentally friendly image. 1 [emphasis added]

    8. However, no such limitation appears in the text of the provision itself. Under s 61AFA the Authority may publicise 'any or all of' the matters set out in Sub-paragraphs (a) to (c). There is no conjunctive 'and' between the provisions.

    Paragraph (1) (c) begins with 'a' rather than 'the'. These elements of the drafting indicate para (1)(c) is intended to have, and is capable of, independent operation in circumstances where, on its terms, it is enlivened.

    9. In weighing the effect of the explanatory memorandum, the comments of the High Court of Australia plurality judgement in A/can are important to recall:

    [T]he task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language ... of legislation is the surest guide to legislative intention. 2

    10. In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act is to be preferred to each other interpretation: s 15AA Acts Interpretation Act 1901 (Cth). Section 2A(1) of the GBRMP Act states:

    The main object of this Act is to provide for the long term protection and

    conservation of the environment, biodiversity and heritage values of the

    Great Barrier Reef Region.

    1 Great Barrier Reef Marine Park and Other Legislation Amendment Bill 2008 explanatory memorandum at [192]

    2 A/can (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 per Hayne, Heydon, Crennan and Kiefel JJ at [47].

    11. One way in which the GBRMP Act (and the Regulations) achieve this object is through regulatory tools, including a Zoning Plan that provides for those activities in the Marine Park that are permitted 'as of right', and those activities that require a permit. Failure to obtain a relevant permit may result in an offence under the GBRMP Act or the Regulations. Section 61AFA is directed to furthering the object of the GBRMP Act by facilitating disclosures which, in the words of the explanatory memorandum, enhance deterrence. It enhances deterrence, and the objects of the GBRMP Act more broadly, to give para (1 )(c) an interpretation that facilitates disclosures which fall clearly within its expressed terms, rather than reading the provision more restrictively than the plain language requires.

    12. In this case, the information which was published by Ms Volhand fell within the terms of para (1)(c) read plainly and purposively. For that reason the disclosure should be taken to be authorised by law for the purposes of the Privacy Act.

    Potential disqualifier: reg 197

    13. Regulation 197 provides:

    1) If a person who is served with an infringement notice pays the infringement notice penalty in accordance with this Part and the infringement notice is not withdrawn by the Authority before the end of the period in which the notice may be withdrawn under regulation 196:

    (a) any liability of the person for the offence is discharged; and

    (b) further proceedings against the person for the offence cannot be

    taken under that provision; and

    (c) the person is not convicted of the offence.

    14. It might be argued that where a person pays the infringement notice then no offence has been committed and so s 61AFA is not engaged. But that overstates the effect of reg 197. It avoids any further proceedings being taken on the offence and avoids a conviction, but it does not nullify the offence as if it never occurred.

    15. Disclosure under s 61AFA should not be understood as a 'liability' capable

    of being discharged by payment of the fine amount. 'Liability' in reg 197 should be understood contextually, i.e. in terms of criminal liability. Publication under s 61AFA is an administrative step open separately to GBRMPA rather than a liability in the criminal sense.

    Potential disqualifier: Ms Volhand's authority

    16. It might also be argued that if Ms Volhand did not have authority to make the publication then s 61AFA has no application.

    17. Section 61AFA permits publication by the Minister or the Authority. The Authority is defined in s 3 of the Act as 'the Great Barrier Reef Marine Park Authority established by this Act'. The Authority is constituted under s 10 as a Chair and 2-4 other members.  Section 40 provides for Staff of the Authority. Sections 47 and 48 allow for delegation of Authority powers to staff of the Authority. There are special restrictions on who can hold a delegation for Part VIII powers (where s 61AFA resides).

    18. At the time of the third alleged breach Ms Volhand did not hold a delegation to perform the function (or exercise the power) in s 61AFA, although in her position she was eligible to hold such a delegation.

    19. The question then is whether this affects the operation of s 61AFA in the context of a claim of interference with privacy. Not every irregularity in the exercise of administrative functions and powers renders the exercise invalid. In Project Blue Sky a majority of the High Court observed:

    An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. 3

    3 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR355 per McHugh, Gummow, Kirby and Hayne JJ at [91].

    20. There is nothing in s 61AFA that suggests a legislative intention to generally invalidate publications which are made by GBRMPA staff who do not hold a delegation. A publication is not something that can be 'invalidated' in a true sense – once published, the information becomes generally available. As between GBRMPA and the outside world there is no necessary inquiry into the capacity of the publisher. For all practical intents it is as though the Authority has published the information. Recipients and readers of such publications are generally entitled to assume that publication is in the course of the publishing officer's duties.

    21. Where there is a complaint by a specific individual against a particular publication, then it falls to be considered against the regime which the individual invokes. In this case that regime is the Privacy Act. Section 8(1) relevantly provides: For the purposes of this Act:

    (a)   an act done or practice engaged in by, or information disclosed to, a person employed by, or in the service of, an agency ... in the performance of the duties of the person 's employment shall be treated as having been done or engaged in by, or disclosed to, the agency ...

    22. This has the virtue of ensuring an agency cannot avoid liability for acts engaged in by their staff in circumstances where the act was done in the course of the employee's duties, but was not strictly authorised by the agency. But this is a double-edged sword. Even if there is internal irregularity about the performance of the duty by the employee, for the purposes of the Privacy Act it is taken to be an act of the agency (in this case, the Authority).

    23. In the absence of a clear intention in s 61AFA that an irregularity in delegations is to have an invalidating effect, and in a context where acts of individual officers are taken to be acts of the agency, the better view is that for the IPP 11.1(d) Ms Volhand’s lack of delegation is not material.”

1. The above submissions were contrary to Mr Davidson's client’s previously held position that subsection (1)(c) was  informed by subsection (1)(a) and that there had to be a conviction prior to it becoming operative.  I agree with the above submissions and hold that the various sub-paragraphs are not linked and are capable of independent operation.

2. Furthermore I am of the view that there is no clear intention in section 61AFA for any irregularities in delegations to have an invalidating effect, especially where acts of individual officers are taken to be acts of the Authority.

3. Accordingly I find that the disclosure falls within the terms of section 61AFA, that IPP 11.1(d) applies and that there has been no interference with privacy on the third alleged breach.

   Damages

4. Section 52 of the Privacy Act provides for outcomes of investigations into alleged Interference with privacy and parts relevant to this matter are as follows:

   52Determination of the Commissioner

   (1)After investigating a complaint, The Commissioner may:

   ……                  
   (b) Find the complaint substantiated and make a determination that includes one or more of the following:
   ……
   (ii) A declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice which is the subject of the complaint;

   ……

   (1AB)The loss or damage referred to in paragraph (1) (b)….Includes:

   Injury to the feelings of the complainant or individual; and
   humiliation suffered by the complainant or individual.

5. The only decision on compensation pursuant to the Privacy Act appears to be Rummery and Federal Privacy Commissioner and Anor.  In Rummery at paragraph 32 the following relevant principles are set out:

   (a)where a complaint is substantiated and loss or damage is suffered, the legislation contemplates some form of redress in the ordinary course;

   (b)awards should be restrained but not minimal;

   (c)in measuring compensation the principles of damages applied in tort law will assist, although the ultimate guide is the words of the statute;

   (d)in an appropriate case, aggravated damages may be awarded; and

   (e)compensation should be assessed having regard to the complainant’s reaction and not to the perceived reaction of the majority of the community or of a reasonable person in similar circumstances.

   Economic loss

6. The Respondent set out certain arguments regarding economic loss as follows: 

7. Damages for economic loss are awarded to restore an individual to 'the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'. (Livingstone v Rawyards Coal Company (1880) 5 App Cas 35; HL 1880, as cited in H. Luntz, Assessment of Damages for Personal Injury and Death (4^th Ed.), 2002, LexisNexis Butterworths at p 4.

8. As a general principle, the amount of damages awarded for an injured person's economic loss is to be assessed 'by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss'. (Graham v Baker (1961) 106 CLR 340 at [346] to [347].

9. At the time of the commission of the offence under the Authority Regulations, the Applicant was engaged as a casual marine conservation research assistant. The Applicant has not provided sufficient evidence that would indicate the extent or reasonableness of any future employment expectations with JCU or any other employer.

10. The Applicant has also not provided any sufficient evidence of the alleged economic loss, nor is there sufficient evidence that the alleged breaches impaired the Applicant's future earning capacity. In terms of future loss, the onus remains is on the Applicant 'to prove what, if anything, he was now not capable of earning'. (See McCracken v Melbourne Storm Rugby League Club Limited and Ors [2007] NSWCA 353).

11. The Respondent submitted that the Joined Party should only be liable for the natural, necessary or probable consequences of their wrongs (Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound No. 1) 1 All ER 404.  The Applicant is therefore, only able to recover damages for those losses which, in the circumstances of the case, are of types which are reasonably foreseeable and are not remote. (Chapman v Hearse (1961) 106 CLR 112 and Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 390, 401, 402))

12. The Respondent contended that given that the only established breach (i.e. the Second Alleged Breach) post-dated the contact by the media to the Applicant's employer, it is not possible to attribute the loss of the Applicant's employment to the Second Alleged Breach.  The Tribunal notes that the second alleged breach took place on 6 April 2013.  At [63] of the Determination, the Respondent explains that the first media contact with the Applicant’s employer took place on 5 April 2014.  In other words, the Applicant's loss and the breach by the Joined Party are too remote to award the Applicant damages for economic loss.

13. I agree with  the very useful summary of the relevant law set out above by Mr Holcombe and also note that March v Stramare (E and MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 sets out the relevant principles in relation to causation summarised by Mr Davidson as follows:

    (a)causation is ultimately a question of common sense and experience, determined on the facts of each case;

    (b)in law, causation is a question identifying where legal responsibility should lie, rather than examine the cause of event from a scientific or philosophical viewpoint, policy issues and value judgements have a role to play in determining whether, for legal purposes, a circumstances we found to be causative of loss;

    (c)a’ but for’ analysis is not a sufficient test causation, although it may be a guide; and

    (d)where there are multiple elements, each one sufficient on its own to have caused the loss, the causation test may be considered satisfied by each one of them.

14. There was a considerable amount of evidence, both oral and documentary, for example P4, as to loss of income sustained by the Applicant as a result of the combined effect of the first and second alleged breaches.  This figure was initially stated as $28,350 but it became evident that it was very difficult for the Applicant to be able to prove a precise figure. In any event both the Respondent and the Authority maintained that the close juxtaposition of the two breaches made it impossible to separate any distinct causal connection with either breach.

15. The Respondent in fact declined to award any damages for economic loss flowing from the second alleged breach upon the basis, inter alia, that it was impossible to separate the effect of the first and second alleged breaches and, applying the relevant case law are set out above, I agree with his reasoning and conclusions. I affirm his decision and decline to award any damages for economic loss flowing from the second alleged breach.

16. Economic losses flowing from the third alleged breach are a different category and if the breach had been established I would have awarded damages for economic loss. Although difficult to arrive at a precise figure I find that, if my interpretation of section 61AFA is incorrect and that the third alleged breach is therefore established, that the Applicant would be entitled to damages for economic loss in the sum of $12,000.

17. This finding is based upon the following:

    (a)The Applicant originally claimed $44,450 as a direct economic loss from 1 August 2013 until 25 January 2014 when he was suspended from the Queensland Dolphin Project as a result of the QSIA article.

    (b)There was extensive cross examination about the Applicant’s other source of income during this period and taxation returns were provided but not taken into evidence.

    (c)The Applicant’s supervisor, Dr Beasley, made her estimates of the Applicant's potential income losses but once again was unable to be precise.  In fact the sum was increased to $17,606.51 during the hearing.

    (d)Evidence during a closed session of the hearing was only able to satisfy me as to potential loss of approximately $18,000 and I note that there was no other evidence to persuade me of a greater loss.

    (e)Allowing for contingencies, I round that sum down to the abovementioned $12,000.

18. I note that I had no difficulty in accepting the truthfulness of the evidence of both the Applicant and Dr Beasley, it is just that these were not matters capable of precise determination because the Applicant found other, but less remunerative, work during some part of the relevant periods.

    Non-Economic loss

19. It is well settled the damages for non-economic loss are paid as compensation for pain and suffering, loss of amenity in a life and a loss of enjoyment of life and that an award of non-economic loss is an evaluative judgement and is a matter of ”opinion, impression speculation and estimation” (see Dell v Dalton (1991) 23 NSWLR 528).

20. The Respondent, when considering the second alleged breach, noted that Applicant contended that as a direct result of the Authority’s interference with his privacy that he:

    “…felt humiliated, suicidal and depressed. This reaction was a direct result of the privacy breach and not a result of his honest mistake. The Applicant’s reaction was likely more significant than the majority of the community because he realised he had made a mistake, he had lost a job is very important to him, because of his natural shyness suffered extreme humiliation, anxiety and depression.’

21. The Respondent also appropriately noted the following in the determination of ‘DK’ and Telstra Corporation Limited [2014] AICmr 118 at [85]:

    The approach taken in Rummery was adopted from the Federal Court’s approach taken to the assessment of damages under the Sex Discrimination Act 1984 (Cth) in Hall v A&A Shieban Pty Ltd. [10] There, Wilcox J noted (at [42]) that:…… Damages for such matters as injury to feelings, distress, humiliation and the effect of the complainant's relationships with other people are not susceptible to mathematical calculation…. To ignore such items of damages simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage.

22. The Respondent considered appropriate issues such as the circumstances surrounding the disclosure, the character of the Applicant including whether or not he was a vulnerable person and the degree of humiliation that he had suffered.

23. The Respondent also considered a relevant factor discussed in ‘CP’ and Department of Defence [2014] AI Cmr 88, namely whether the disclosure was contrary to the express statement of the Applicant and not otherwise permitted under the Privacy Act.

24. I consider this last factor to be particularly relevant if I had found for the Applicant in relation to the third alleged breach. The Applicant gave evidence to the effect that he was assured that he paid the fine that the amount and the fact that he paid it would not be published.

25. Although I agree generally with the approach taken by the Respondent in determining non-economic loss, and noting that this is a very imprecise science, I consider that, in all the circumstances of this case, the Applicant should be awarded $8000 and therefore the Tribunal substitutes that amount for the $5000 awarded by the Respondent.

26. Once again, in case I am found to be wrong in my interpretation of section 61AFA I will proceed to assess no-economic damages in relation to the third alleged breach if it should be established.

27. As previously noted ‘CP’s’ case has particular relevance to this alleged breach although the Applicant's initial distress and humiliation should well subsided by the time of the publication in July. I take into account the substantial matters raised by both the Respondent and the Authority including the fact that the Applicant bought these matters upon himself by fishing in a Green Zone.  However, I also note that upon being assured that the matter of his fine would not be made public the Applicant paid the fine rather than opting to defend himself upon the basis of honest and mistaken belief due to the alleged inaccuracies in his navigation system.

28. If my determination in failing to find the third alleged breach established is overturned I would also award $8000 for non-economic loss in relation to that breach.

    Aggravated damages

29. The Applicant claims an entitlement to aggravated damages on the basis that:

    _{(i)The respondent [sic] behaved ‘high handedly, maliciously, insultingly or oppressively[‘],}

    _{(ii)The manner in which a defendant conduct[ed] his or her case exacerbates the hurt and injury suffered by the plaintiff.}

30. Although there may be grounds that there were some high-handed or malicious intent behind the first alleged breach I have already ruled that that breach cannot be established.

31. I can see no evidence of such intention behind the established second alleged breach.

32. As to the second matter raised by the Applicant, he is aggrieved by the Authority's persistent denial in relation to being responsible for the third alleged breach prior to finally ‘admitting’ responsibility.

33. Although the Respondent has the power to award aggravated damages I do not consider that the Authority’s behaviour in relation to the second alleged breach (and the third alleged breach if I am overturned) approaches, let alone achieves, the threshold necessary for an award of aggravated damages for the following reasons.

34. The Respondent has correctly described (at [83]-[84]) when such an award can be made in his reviewable decision at T42.

35. The Respondent's comments are in accordance with the decision of Taylor J in Uren v John Fairfax and Sons Pty Ltd [129-130] where His Honour, at [130], states in relation to aggravated damages:

    The former are, of course, given by way of compensation for injury to the plaintiff, though frequently intangible, resulting from the circumstances a manner of the defendant's wrongdoing

36. The ‘wrongdoing’ is discussed, inter alia, in  the below mentioned  decisions in the same case and have been approved in many cases since:

37. Taylor J, at [129]:

    …the conduct of the defendant has been high-handed, insolent, vindictive or malicious or had in some way exhibited a contumelious disregard of the plaintiff’s rights.

38. Windeyer J, at [155]:

    There must be evidence …that there, was, at least, a conscious wrong-doing in contumelious disregard of another’s rights.

39. The requirement for a conscious wrongdoing to attract exemplary damages referred to above has long been a part of Australian law, see Knox CJ in Whitfield v De Lauret & Co. Ltd. [1920] HCA 75; (1920) 29 CLR 71, at [77]:

    Exemplary damages are given only in cases of conscious wrongdoing in contumelious disregard of another’s rights.

40. Despite the Applicant’s thorough attempts to unearth all relevant materials there was no evidence of deliberate or malicious behaviour (although the latter is not a necessary ingredient to found aggravated damages) in relation to the second or third alleged breaches. Furthermore when the alleged breaches were bought to the attention of the Authority they attempted, good faith, to mediate with the Applicant.

    DECISION

41. Accordingly I affirm the decision of the Respondent in relation to the three alleged breaches but set aside the award of damages of $5000 for the established second breach and substitute therefor an award of $8000.

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO RFD SC (Deputy President)

........................................................................

Administrative Assistant

Dated

Date(s) of hearing	22 and 23 February 2016
Applicant	In person
Counsel for the Respondent	Mr Lex Holcombe, HWL Ebsworth Lawyers
Counsel for the Other Party	Mr Justin Davidson, AGS