Gear v the Information Commissioner

Case [2025] QSC 162

SUPREME COURT OF QUEENSLAND

CITATION:

Gear v the Information Commissioner [2025] QSC 162

PARTIES:

MITCHELL GEAR

(applicant)

v
THE INFORMATION COMMISSIONER

(respondent)

FILE NO:

16324 of 2024

DIVISION:

Trial Division

PROCEEDING:

Judicial review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 July 2025

DELIVERED AT:

Brisbane

HEARING DATE:

23 May 2025

JUDGE:

Sullivan J

ORDER:

The orders of the Court are as follows:

1.   In proceeding 16324 of 2024, the decision of the Information Commissioner of 11 November 2024 is quashed.

2.   In proceeding 16326 of 2024, the decision of the Information Commissioner of 11 November 2024 is quashed.

3.   In proceeding 16327 of 2024, the decision of the Information Commissioner of 11 November 2024 is quashed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where a delegate of the respondent declined to deal with three separate privacy complaints made by the applicant against three manufacturers of alcohol ignition interlock devices – where the applicant sought a review of each of the decisions – where the delegate declined to deal with the complaints by exercising the discretion under s 168(1)(c) of the Information Privacy Act 2009 (Qld), on the basis that various components of each complaint were “lacking in substance” – whether any of the component parts of the privacy complaints relating to individual Information Privacy Principles were the subject of error in respect of any of the grounds for review in s 20(2) of the Judicial Review Act 1991 (Qld)

Anti-Discrimination Act 1991 (Qld), s 139, s 168

Information Privacy Act 2009 (Qld), s 26, s 27, s 34, s 35,
s 36, s 39, s 59, s 60, s 64, s 167, s 168, s 171, s 175, s 176,
s 178, Sch 3
Judicial Review Act 1991 (Qld), s 20
Privacy Act 1988 (Cth), s 41
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Transport Operations (Road Use Management - Driver Licensing) Regulation 2021 (Qld), s 334
Transport Operations (Road Use Management) Act 1995 (Qld), s 91K(1)(a), 91L(2)

George v Rockett (1990) 170 CLR 104
Madzikanda v Australian Information Commissioner [2023] FCA 1445
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Purrer v Information Commissioner [2018] QSC 272
Toodayan v Anti-Discrimination Commissioner Queensland [2018] QCA 349

COUNSEL:

The applicant appeared on his own behalf
M P A Maynard for the respondent

SOLICITORS:

Office of the Information Commissioner for the respondent

Introduction

  1. Mr Gear has brought applications for statutory orders of review in respect of three separate decisions by a delegate of the Office of the Information Commissioner (“OIC”). Each of those decisions were made on 11 November 2024, and each decision dismissed a privacy complaint that had been commenced by Mr Gear. The circumstances of the privacy complaints were as follows.

  2. Mr Gear had previously been involved in a drink driving incident. In consequence of that incident, and in order to minimise the time during which his licence was suspended under a statutory scheme, Mr Gear…

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Details
AGLC
Gear v Office of the Information Commissioner [2025] QSC 162
Case
[2025] QSC 162
Decision Date

CaseChat Overview and Summary

The case of Gear v the Information Commissioner involves the applicant, Mr Gear, who filed privacy complaints against three manufacturers of alcohol ignition interlock devices. These manufacturers were alleged to have breached various Information Privacy Principles (IPPs) under the Information Privacy Act 2009 (Qld). The Information Commissioner (OIC), acting as the decision-maker, declined to deal with the complaints, finding them to be "lacking in substance" under section 168(1)(c) of the IP Act. Mr Gear sought judicial review of these decisions. The primary legal issue before the court was whether the delegate's decision to decline to deal with the privacy complaints was subject to error on any of the grounds for review as outlined in section 20(2) of the Judicial Review Act 1991 (Qld).

The court found that the delegate had concluded that the privacy complaints were not arguable and declined to deal with them based on the belief that they were "lacking in substance." The delegate's decision hinged on the belief that there were more appropriate mechanisms available to address the complaints, specifically an application to the contracting agency under Chapter 3 of the IP Act. However, the court found that the delegate had overlooked the necessity of demonstrating that the criteria for refusing access to personal information under Chapter 3 were met. The court held that the decision was affected by error because the delegate did not consider whether the criteria for refusing access were present in the circumstances of Mr Gear's requests. The delegate's reasoning process concerning the substance of the complaints was flawed, and the decision was quashed on the basis that it was made in error.

The final orders of the court were that the decisions of the Information Commissioner made on 11 November 2024 in proceedings 16324, 16326, and 16327 of 2024 were quashed. This outcome mandates that the Information Commissioner revisit the privacy complaints made by Mr Gear against the three manufacturers.

Orders

Orders of the court

The orders of the Court are as follows:

1. In proceeding 16324 of 2024, the decision of the Information Commissioner of 11 November 2024 is quashed.

2. In proceeding 16326 of 2024, the decision of the Information Commissioner of 11 November 2024 is quashed.

3. In proceeding 16327 of 2024, the decision of the Information Commissioner of 11 November 2024 is quashed.

Background

Background to the litigation

It is within this legislative scheme that the real issue is to be determined.Background facts I have summarised much of the background facts above. It was identified by the OIC at the hearing of these applications that essentially the same substantive decision was made by the delegate in relation to each of the IPP 6 complaints made against each of the three manufacturers. Accordingly, in argument I was taken to the decision which concerned the complaint against Dräger as representative of all the decisions. I will also use the decision relating to Dräger for the purposes of addressing the IPP 6 issue for each of the decisions. I am satisfied that each of the three decisions is, in substance, effectively in identical terms on this issue. The delegate’s decision on IPP 6 was coupled with her decision on IPP 5. It is only the response which pertains to IPP 6 which constitutes the real issue under consideration. The delegate’s decision of 11 November 2024 for Dräger relevantly provided as follows:“…Access and amendment - IPP 5 and IPP 6Your complaint included complaints about breaches of IPPs 5 and 6, in relation to not receiving a response to an information access request made to Draeger on 27 October 2023:Draeger has refused to acknowledge my application and failed to inform me whether they possess the requested information … While I have a basic understanding that Draeger was collecting my personal information, I have not been provided with detail information regarding the types of, and extent of personal information contained in the documents which Draeger is or was in possession of.In an email to the OIC on 9 July 2024, you also clarified that your application “specifically stated that the request was being made under the Information Privacy Act 2009.”In my Preliminary View Letter, I advised you that I did not further consider your complaints regarding IPPs 5 and 6, as I considered there were more appropriate mechanisms available to deal with this matter.In your 21 October 2024 response to OIC’s Preliminary View Letter you submit that “there is no mechanism under chapter 3 which allows an individual to complain about a failure of a bound entity to comply with its obligations under the Act. Additionally, contracted service providers are not subject to external reviews…this complaint represents the only available action I have at my disposal, and therefore, I would appreciate that you would not exclude these points from my complaint.”With regards to IPP 5, Clause 68 of Draeger’s Client Agreement appears to me to set out the information of the kind reasonably required under this privacy principle, in that it states “Draeger is collecting the Client’s personal information directly from the Client and also via the Interlock device (including images)” and TMR’s Alcohol Ignition Interlock Program Notice Agreement provides notice that the interlock device records “information about alcohol readings and vehicle use.” My reasonable belief is that this part of your complaint lacks substance, and I may decline to deal with it under section 168(1)(c) of the IP Act.Under IPPs 5 and 6 an agency is not required to give a person information, or access to a document if, under an access law, the agency is authorised or required to refuse to give the information, or access to the individual.As a BCSP,[8] Draeger is required to comply with IPP 5 and 6 as if it was TMR. TMR is authorised to refuse access to information and documents under Chapter 3 of the IP Act. There are no review rights of the decision by a BCSP, including a ‘deemed decision’, by OIC.Documents in a BCSP’s possession, however, may be subject to an access request made to the contracting agency (ie TMR) under Chapter 3 of the IP Act, if the contracting agency is entitled to access the documents, or the documents are in the agency’s possession or legal control. TMR’s Information Privacy Plan sets out that any personal information collected or used by a BCSP remains under TMR’s control. I further note that TMR’s service agreement with Draeger contains privacy and confidentiality clauses that require Draeger to fully cooperate with TMR, to enable TMR to respond to applications for access to document(s) containing an individual’s personal information.On the material before me, it therefore appears that the personal information you seek to obtain from Draeger may be the subject of an application to TMR under Chapter 3 of the IP Act (which application would then enjoy formal review rights noted in my previous letter). Given the availability to you of this formal means of pursuing access to the same information from TMR, I reasonably believe that this part of your complaint against Draeger is lacking in substance. I may therefore decline to deal with it under section 168(1)(c) of the IP Act.…” (Footnotes omitted) [8]BCSP stands for bound contracted service provider.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the ultimate conclusion and decision sections of the Dräger decision, it can be seen that the delegate concluded that no part of the privacy complaint raised an arguable case that the manufacturer had breached the IPPs. This included the alleged breach of IPP 6. This finding was based on the delegate having formed the reasonable belief that the privacy complaint was “misconceived” or “lacking in substance” within the meaning of s 168(1)(c) of the IP Act. It was this finding which underlay the exercise of the statutory discretion found in s 168(1) of the IP Act to decline to deal with the complaint. The conclusion and relevant findings of the delegate were as follows:“…ConclusionAfter carefully considering all the material before OIC in this matter, I have decided to adopt as final the views and reasoning set out in my Preliminary View Letter, together with the above, and decline to deal with your complaint against Draeger under section 168(1)(c) of the IP Act.In making this decision I have, as noted, considered all the material before OIC, including your further submissions in reply to the Preliminary View Letter, summarised above. There is no fresh material in those submissions to dissuade me from the views and reasoning expressed in my Preliminary View Letter. For the reasons explained in my Preliminary View Letter, and as outlined above, my view remains that your complaint, to the extent that it raises matters within OIC’s privacy jurisdiction, does not raise an arguable case that Draeger has breached the privacy principles. On that basis, it is my reasonable belief that your complaint is misconceived or lacking in substance, and it is appropriate to exercise the discretion conferred by section 168(1)(c) of the IP Act and decline to deal with your complaint. DecisionI am a delegated officer within OIC with the authority to consider and make decisions on privacy complaints. On the basis of the above information, I have decided to decline to deal with your complaint under section 168(1)(c) of the IP Act. In reaching this decision, proper consideration was given to the relevant human rights under the Human Rights Act 2019 (Qld) (HR Act). My decision is compatible with these rights.The complaint process is now finalised. OIC will advise Draeger and close our file…” (Footnotes omitted) Those findings and the exercise of the power rested upon each component part of the complaint being found to be “misconceived” or “lacking in substance.” The integrity of the decision thereby rested on the reasoning process for each component part of the complaint being unaffected by the relevant error grounds found in s 20(2) of the JRA. Relevantly, for the determination of each of the three proceedings before the Court, the OIC at the hearing accepted the following:·The decision-maker had found that each of the manufacturers were required to comply with IPP 6 as if each manufacturer was TMR.·Whilst the decision-maker had found that TMR, as an agency, could be authorised to refuse access to “personal information” under chapter 3 of the IP Act, there was no finding by the decision-maker that any of the criteria which would actually authorise the refusal of access was present in the circumstances of Mr Gear’s requests for access to his personal information.·The decision-maker had found that a chapter 3 application to TMR as an agency would have enjoyed formal review rights. ·The decision-maker had found that she had reasonably formed the belief that the complaint of a contravention of IPP 6 against each manufacturer was “lacking in substance” solely on the basis that there was another available formal means of pursuing access to the same personal information from TMR, namely via chapter 3 of the IP Act.·It was the formation of the above reasonable belief about this component part of the primary complaint against each manufacturer which formed part of the basis of the delegate declining to deal with the privacy complaint as a whole under s 168(1)(c) of the IP Act.Resolution of the real issue(a) Introduction

Ratio Decidendi

Legal Principle Established

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