Gao v Federal Privacy Commissioner

In Gao v Federal Privacy Commissioner, the applicant, Mr. Gao, sought relief against both the Federal Privacy Commissioner and the Department of Immigration and Multicultural Affairs (DIMA). The dispute arose from the alleged breach of privacy rights under the Privacy Act by DIMA in communicating the results of a paternity test to the Registry of Births, Deaths and Marriages. Mr. Gao also sought to challenge the decision of the Federal Privacy Commissioner who had dismissed his complaint against DIMA. The case was heard and determined by the Federal Court of Australia.

The primary legal issues before the court were whether the application against DIMA was properly before the court and if the applicant had the right to directly challenge the decision of the Federal Privacy Commissioner. The court considered whether the complaint against DIMA could be directly made to the Federal Court or if it should have been referred to the Privacy Commissioner. Additionally, the court examined whether the time limits for reviewing the decision of the Privacy Commissioner had expired and if so, whether the application could be revived or recommenced.

The court held that the complaint against DIMA was not properly before the Federal Court. Instead, such complaints should be made to the Privacy Commissioner under section 36 of the Privacy Act. Furthermore, the court found that any decision by the Privacy Commissioner rejecting a complaint was reviewable by the Federal Court under the Administrative Decisions (Judicial Review) Act, but no right of review existed against the agency allegedly responsible for the privacy infringement. The court also noted that the time limit for reviewing the Privacy Commissioner's decision had expired, rendering the application time-barred. Consequently, the application was dismissed. The court did not make an order regarding costs but indicated that if Mr. Gao sought to revive the proceedings, the court would consider the current proceedings and the order made in this case when exercising discretion on costs in any subsequent proceedings.

In conclusion, the Federal Court dismissed Mr. Gao's application as it did not disclose a reasonable cause of action. The court suggested that if leave for an extension of time was sought, the proceedings might be reconsidered. However, for the present, the only order made by the court was the dismissal of the application.