Nicholson v Federal Privacy Commissioner

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NICHOLSON v FEDERAL PRIVACY COMMISSIONER & ANOR [2010] FMCA 716

ADMINISTRATIVE LAW – Application to review decision of the Office of the Privacy Commissioner – jurisdiction of the Privacy Commissioner – application for review dismissed.

Administrative Decisions (Judicial Review) Act 1977, s.16(1)
Employment Services Act 1994, ss.4, 58(1) and Part 4.3
Privacy Act 1988, ss.6, 7, 27(1), 13A(1)(c)(ii), 36, 41(1)

Ayan v Minister for Immigration and Multicultural Affairs (2003) 196 ALR 332
Nicholson v Federal Privacy Commissioner & Anor [2010] FMCA 190
Rashid v Minister for Immigration and Citizenship [2007] FCAFC 25
Re Wakim; Ex Parte McNally [1999] HCA 27; 198 CLR 511; (1999) 163 ALR 270; (1999) 73 ALJR 839; (1999) 24 Fam LR 669

Applicant: EVELYN NICHOLSON

First Respondent: FEDERAL PRIVACY COMMISSIONER

Second Respondent: ADULT MULTICULTURAL EDUCATION SERVICES

File Number: MLG 170 of 2010

Judgment of: Riethmuller FM

Hearing date: 13 May 2010

Date of Last Submission: 13 May 2010

Delivered at: Melbourne

Delivered on: 16 September 2010

REPRESENTATION

Counsel for the Applicant: The applicant appearing in person

Solicitors for the First Respondent: Mr Rogers – Australian Government Solicitor

Solicitors for the Second Respondent: No appearance by or on behalf of the Second Respondent.

ORDERS

1. The application for review is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 170 of 2010

EVELYN NICHOLSON

Applicant

And

FEDERAL PRIVACY COMMISSIONER

First Respondent

ADULT MULTICULTURAL EDUCATION SERVICES

Second Respondent

REASONS FOR JUDGMENT

Background

1. The application concerns the applicant’s complaint to the Privacy Commissioner alleging the Adult Multicultural Education Service (‘AMES’) interfered with her privacy.  In January 2010 the Assistant Privacy Commissioner found that AMES was not within the jurisdiction of the Privacy Act 1988.

2. On 25 March 2010 an application to summarily dismiss the applicant’s application for judicial review was refused: see Nicholson v Federal Privacy Commissioner & Anor [2010] FMCA 190.

3. For an act to be an interference with privacy within the meaning of the Privacy Act, it must be carried out by an entity or person covered by the Act. Such an entity can be a ‘contracted service provider’, an ‘organisation’, or an ‘agency’: see ss. 27(1) and 13A(1)(c)(ii). In the interlocutory judgment I found that AMES was not an ‘organisation’ as defined in the Act.

4. However, the precise relationship between AMES and the Commonwealth via the Department of Education, Employment, and Workplace Relations (‘DEEWR’) was then unclear.  The nature of this relationship needed to be ascertained in order to determine whether AMES is an ‘agency’ within the meaning of the Act.  The parties were given an opportunity to provide evidence to establish whether AMES is within the jurisdiction of the Act.

The Law

1. Section 27(1) of the Act sets out the Commissioner’s functions in relation to interferences with privacy:

   27.    [Functions of Commissioner in relation to interferences with privacy]

   (1)    Subject to this Part, the Commissioner has the following functions:

   (a)to investigate an act or practice of an agency that may…