Hammond v Australian Information Commissioner

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FEDERAL COURT OF AUSTRALIA

Hammond v Australian Information Commissioner [2013] FCA 802

Citation: Hammond v Australian Information Commissioner [2013] FCA 802
Parties: RANDY HAMMOND v AUSTRALIAN INFORMATION COMMISSIONER
File number: VID 459 of 2012
Judge: DAVIES J
Date of judgment: 12 August 2013
Catchwords:

ADMINISTRATIVE LAW – Application for judicial review – Decision by Australian Information Commissioner to decline to investigate applicant’s complaint pursuant to Privacy Act 1988 (Cth), s 41(1)(a) –Commissioner satisfied that applicant’s privacy not interfered with – Whether applicant was afforded procedural fairness – Application dismissed.

PRACTICE AND PROCEDURE – Application by applicant for 12 month adjournment – Applicant experiencing mental health problems – Whether applicant  would suffer prejudice if application refused – Proceeding ready for determination on the papers – Application refused.

Legislation: Privacy Act 1988 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Date of hearing: Heard on the papers
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 28
Counsel for the Applicant: R Hammond (self represented)
Counsel for the Respondent: E Arduca
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 459 of 2012
BETWEEN:

RANDY HAMMOND
Applicant
AND: AUSTRALIAN INFORMATION COMMISSIONER
Respondent

JUDGE:

DAVIES J

DATE OF ORDER:

12 AUGUST 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application for judicial review is dismissed.

2.The applicant pay the respondent’s costs of the application, including all reserved costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 459 of 2012
BETWEEN:

RANDY HAMMOND
Applicant
AND: AUSTRALIAN INFORMATION COMMISSIONER
Respondent

JUDGE:

DAVIES J

DATE:

12 AUGUST 2013

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The applicant (“Mr Hammond”) has applied for judicial review of the decision of the respondent (“the Commissioner”) not to investigate Mr Hammond’s privacy complaint against the ANZ Banking Group Ltd (“the ANZ”). The decision was made by the Commissioner exercising his power under s 41(1)(a) of the Privacy Act 1988 (Cth) (“the Privacy Act”) to decline to investigate a complaint if he is satisfied that the act or practice complained of did not constitute an interference with the complainant’s privacy.


    Mr Hammond, who represents himself, claims that he was not afforded procedural fairness in the making of the decision and wants the decision set aside and his complaint investigated by the Commissioner.

  2. By court orders made on 2 and 18 April 2013, the application is to be determined on the papers. Each party has filed the evidence and submissions on which they rely but


    Mr Hammond has applied for an adjournment of the application for a period of


    12 months because he has mental health problems and feels incapable of properly presenting his case to the Court.

    SHOULD AN ADJOURNMENT OF THE PROCEEDING BE GRANTED?

  3. Mr Hammond supported his application for an adjournment with a report from a counselling psychologist, Rosemary Williams, dated 25 June 2013. Ms Williams assessed

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Details
Case
[2013] FCA 802
Decision Date

CaseChat Overview and Summary

In Hammond v Australian Information Commissioner, the applicant, Mr. Hammond, sought judicial review of the decisions of the Commissioner, who is the Australian Information Commissioner, not to investigate his complaint regarding the misuse of his personal information by the ANZ. The primary issue in this case was whether Mr. Hammond was denied procedural fairness in the Commissioner's review of his complaint. Mr. Hammond argued that he was not given an opportunity to present evidence to demonstrate his loss of dignity, which he claimed was a relevant consideration for the Commissioner. He also alleged that the Commissioner misled him regarding the relevance of the loss of dignity and that there was subconscious bias on the part of the Compliance Officer.

The court examined whether the decisions of the Commissioner not to investigate Mr. Hammond's complaint were reviewable. It found that the internal review process conducted by the Commissioner was not a reviewable decision or conduct under the ADJR Act. However, the court decided to review the merits of Mr. Hammond's claims concerning procedural fairness. The court considered the National Privacy Principles (NPPs) and, specifically, NPP 2.1, which addresses the use and disclosure of personal information. Mr. Hammond argued that a loss of dignity should be a relevant consideration in the purpose test under NPP 2. This test is derived from the principles outlined in the International Covenant on Civil and Political Rights, which emphasizes the inherent dignity of the human person.

The court concluded that there was no merit in Mr. Hammond's claims. It held that the decisions of the Commissioner not to investigate his complaint were appropriate and that the internal review process was conducted in accordance with the relevant legal standards. The court found that Mr. Hammond's allegations of procedural unfairness, including the denial of opportunity to present evidence and the claimed subconscious bias, did not undermine the validity of the Commissioner's decisions. Consequently, the application for judicial review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In his third submission, Mr Hammond withdrew his first and second submissions “to enable the Court to focus on the matters outlined in [the third] submission”. Mr Hammond claimed in his third submission that he was denied procedural fairness in relation to the decision of the Commissioner not to investigate his complaint by reason that he was not given opportunity to present evidence to the Commissioner to satisfy the Commissioner that he had suffered “loss of dignity” resulting from the use of his personal information by the ANZ. He also alleged that he was misled by the Commissioner that the loss of dignity that he suffered by reason of the use of his personal information was an irrelevant consideration and accordingly that he had not put before the Commissioner his counselling records to demonstrate that the loss of dignity that he had suffered was genuine and significant enough to open an investigation. He also alleged subconscious bias on the part of the Compliance Officer. (3) Decision In my opinion, there is no merit in the claims made by Mr Hammond. I have taken the view that the application for judicial review of the “6 June 2012 decision” should be taken as an application to review each of the decisions of the Commissioner under s 41(1)(a) of the Privacy Act not to investigate Mr Hammond’s complaint. The internal review finding that those decisions were appropriate is neither a reviewable decision nor reviewable conduct for the purposes of the ADJR Act. I shall nonetheless, for the sake of completeness, examine the merits of Mr Hammond’s claims about the denial of procedural fairness in relation to the review that was undertaken. The National Privacy Principles (NPPs) contained in Schedule 3 of the Privacy Act regulate the way certain organisations are to handle personal information. The NPPs cover the collection, use, disclosure and storage of personal information. The NPPs generally apply to private sector organisations with an annual turnover of $3 million or more. NPP 2 regulates the use and disclosure of personal information by organisations. NPP 2.1 provides that:An organisation must not use or disclose personal information about an individual for a purpose (the secondary purpose) other than the primary purpose of collection unless:…(b) the individual has consented to the use or disclosure; or…(g) the use or disclosure is required or authorised by or under law; or… Mr Hammond contended that a loss of dignity is a relevant consideration for the “purpose test” of NPP 2 that is derived from the preamble to the Privacy Act, which expresses that the legislation was intended to implement Australia’s obligations relating to privacy under the International Covenant on Civil and Political Rights (“the Covenant”) and the Organisation for Economic Cooperation and Development Guidelines on the Protection of Privacy and Transborder Flows of Personal Data. The preamble of the Covenant sets out that the States parties to the covenant:Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognising that these rights derive from the inherent dignity of the human person,….Agree upon the following articles…” (emphasis added).

Ratio Decidendi

Legal Principle Established

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