Liu v Australian Information Commissioner

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FEDERAL COURT OF AUSTRALIA

Liu v Australian Information Commissioner [2024] FCA 1287  

File number(s): NSD 476 of 2024
Judgment of: NEEDHAM J
Date of judgment: 8 November 2024
Catchwords:

 ADMINISTRATIVE LAW – application for judicial review of a decision of a delegate of the Australian Information Commissioner under the Administrative Decisions (Judicial Review) Act1977 (Cth) – where the applicant complained to the Commissioner under the Privacy Act 1988 (Cth) that information about his newborn child had been disclosed to his former spouse – where information provided to Services Australia for purposes of management of applicant’s child support obligations under Child Support (Assessment) Act1989 (Cth) – disclosure to former spouse as carer of child entitled to child support authorised by s 146E(4) of Child Support (Assessment) Act 1989 (Cth).

HUMAN RIGHTS – privacy – Australian Privacy Principles - whether Australian Privacy Principle 6.2 elevates applicant’s expectations as to use of information provided in relation to child support obligations above obligations to notify other parent under s 146E(4) of the Child Support Assessment Act 1989 (Cth)

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)

Child Support (Assessment) Act 1989 (Cth) ss 76, 146A, 146E

Evidence Act 1995 (Cth) s 136

Judiciary Act 1903 (Cth) s 39B

Privacy Act 1988 (Cth) ss 15, 36, 40, 41(1), sch 1

Cases cited:

Jones v Office of the Australian Information Commissioner [2014] FCA 285

Madzikanda v Australian Information Commissioner [2023] FCA 1445

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Rana v Australian Information Commissioner [2022] FCA 817

Simjanovska v Department of Human Services [2019] FCA 499

Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124

Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 50
Date of hearing: 22 October 2024
Counsel for the Applicant: Applicant was self-represented
Counsel for the Respondent: Ms L Dargan
Solicitor for the Respondent: Holding Redlich

ORDERS

NSD 476 of 2024
BETWEEN:

FENG LIU

Applicant

AND:

OFFICE OF THE AUSTRALIAN INFORMATION COMMISSIONER

Respondent

ORDER MADE BY:

NEEDHAM J

DATE OF ORDER:

8 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The application for judicial review is dismissed.

2.The applicant is to pay the respondent’s costs, as agreed or assessed.

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


REASONS FOR JUDGMENT

NEEDHAM J:

  1. The applicant, Mr Liu, seeks judicial review of the decision of the respondent, the Australian Information Commissioner, by her delegate, not to investigate Mr Liu’s complaint under s 41(1) of the Privacy Act 1988 (Cth), on the ground that the disclosure of Mr Liu’s information by Services Australia to his former spouse was not an interference with his privacy.

  2. Mr Liu was dissatisfied with that outcome and sought judicial review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

  3. In…

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Details
Case
[2024] FCA 1287
Decision Date

CaseChat Overview and Summary

Liu sought judicial review of a decision of the Australian Information Commissioner (Commissioner) not to investigate a complaint about a disclosure of personal information. The complaint was that information about Liu's newborn child had been disclosed to his former spouse. This disclosure had occurred after Liu provided information to Services Australia for the purpose of managing his child support obligations. The disclosure was authorised by section 146E(4) of the Child Support (Assessment) Act 1989 (Cth). The case raised questions about the application of the Australian Privacy Principles (APP) under the Privacy Act 1988 (Cth) and whether APP 6.2 elevated Liu's expectations about the use of information provided in relation to child support obligations above the obligations to notify other parents under section 146E(4) of the Child Support Assessment Act 1989 (Cth).

The court examined whether an error of law could be shown in relation to the application of APP 6.2(b). However, the Commissioner argued that any such error would not be material, as the disclosure was permissible under APP 6.1. Liu's task was to demonstrate that the Commissioner's decision to close his complaint involved a ground of review under section 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The court held that Liu could not show that there was a breach of the rules of natural justice, that procedures required by law were not observed, or that the decision was not authorised by the enactment in pursuance of which it was purported to be made. Liu's argument that the disclosure exacerbated tensions in his private life and resulted in him not being able to see his daughter was not amenable to judicial review. The court also held that Liu could not demonstrate that the decision of the Commissioner not to investigate the complaint was not consistent with the facts and the law.

The court dismissed Liu's application for judicial review. The court ordered that Liu pay the Commissioner's costs, as agreed or assessed. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application for judicial review is dismissed.

2. The applicant is to pay the respondent’s costs, as agreed or assessed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Even if an error of law is capable of being shown in relation to the application of APP 6.2(b), the Commissioner submitted that the error would not be material in the sense that it could have made a difference to the decision that was made, as disclosure was permissible under APP 6.1.Consideration As noted above, there is no basis (absent legal unreasonableness, which was only faintly raised by Mr Liu), for a consideration of the merits of the decision. Mr Liu’s task is made more difficult by the fact that the Commissioner’s (or her delegate’s) decision under s 41(1)(a) is discretionary (see the passage quoted above at [6] from Simjanovska at [108]). The statute requires that the Commissioner reach a state of satisfaction about any interference with Mr Liu’s privacy, and it is the process of reaching that determination of satisfaction that I need to consider; not whether, as a fact, there was in fact any such interference. Mr Liu needs to demonstrate that, in the Commissioner determining to close the complaint, a ground of review under s 5(1) of the ADJR Act has been made out. That sub-section provides:(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds:(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;(b)that procedures that were required by law to be observed in connection with the making of the decision were not observed;(c)that the person who purported to make the decision did not have jurisdiction to make the decision;(d)that the decision was not authorized by the enactment in pursuance of which it was purported to be made;(e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;(g)that the decision was induced or affected by fraud;(h)that there was no evidence or other material to justify the making of the decision;(j)that the decision was otherwise contrary to law. It does appear to be the case that grounds 1 and 4 – that Services Australia informed Mr Liu’s former spouse promptly after he updated his information that he had a newborn baby, and that that disclosure exacerbated tensions in his private life and resulted in him not being able to see his daughter – are not amenable to judicial review in these proceedings. They relate to actions taken by Services Australia and focus, not on reviewable decisions or grounds of review in s 5(1) of the ADJR Act, but on the timing and consequences of the disclosure of the information. Grounds 2, 3, and 5 can be considered together. Grounds 2 and 3 – that Services Australia disclosing the information that Mr Liu had a newborn baby to his former spouse was not something he would expect, was unauthorised, and was in breach of the APPs – may be considered on the question of whether there was an error of law infecting the decision not to investigate Mr Liu’s complaint of interference with his privacy. They cannot be considered on the basis of the merits of the decision of the Commissioner by her delegate. Ground 5 asserts that the decision of the Commissioner not to investigate the complaint “is not consistent with the facts and the law”.