NICHOLSON v Federal Privacy Commissioner - [2010] FMCA 190

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NICHOLSON v FEDERAL PRIVACY COMMISSIONER & ANOR

[2010] FMCA 190

PRIVACY – Application to review decision of Office of the Privacy Commissioner – jurisdiction of Privacy Commissioner – application for summary dismissal refused.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Adult Community and Further Education Act 1991 (Vic), s.1(ca), 48(1)
Corporations Act 2001 (Cth)
Education and Training Reform Act 2006 (Vic), ss.3.3.26(1), 3.3.30, 6.1.1(a)
Federal Magistrates Court Rules 2006 (Vic), r.13.10(a)
Freedom of Information Act 1982 (Vic)
Privacy Act 1988, ss.6(1), 6(1)(c), 6C(3), 6C(1), 13A(1), 13A(1)(c)(ii), 27(1)

Municipal Association of Victoria v VCAT [2004] VSC 146

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:

5 March 2010

Date of Last Submission:

5 March 2010

Delivered at:

Melbourne

Delivered on:

25 March 2010

REPRESENTATION

Solicitors for the Applicant:

The applicant appearing in person

Solicitors for the first Respondent:

Ms Arduca - Australian Government Solicitor

Solicitors for the second Respondent:

No appearance

ORDERS

That the application for summary dismissal be refused.
The matter be adjourned to 13 May 2010 at 9.30 a.m. for hearing.
The respondent do file and serve affidavits as to the relationship of the second respondent to the Commonwealth with respect to the applicant on or before 3 May 2010, identifying the relevant statutes and regulations.

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

On 12 January 2007 the applicant made a complaint to the Privacy Commissioner alleging the Adult Multicultural Education Service (‘AMES’) interfered with her privacy. Her complaint can be summarised as:
(a)AMES inappropriately collected sensitive personal information, which included her ethnic background;
(b)AMES inappropriately collected her password to the job search network in order to obtain her pin number; and
(c)Such information was collected without the applicant’s consent.
In January 2010 the Assistant Privacy Commissioner concluded that AMES was not within the jurisdiction of the Privacy Act 1988.
The applicant seeks judicial review of the decision of the Assistant Privacy Commissioner under the Administrative Decisions (Judicial Review) Act 1977.
The respondent seeks orders for the summary dismissal of the application. The central issue that must be determined is whether AMES is an entity that falls within the ambit of the Privacy Act.

The Law

For an act to be interference with privacy within the meaning of the Privacy Act, it must be carried out by an entity or person covered by the Act.
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 breach an Information Privacy Principle and, where the Commissioner considers it appropriate to do so, to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCA 190
Decision Date: 25 March 2010

CaseChat Overview and Summary

Nicholson brought proceedings against the Federal Privacy Commissioner in the Federal Circuit Court, challenging the Commissioner's refusal to provide certain information about a government investigation into Nicholson's activities. The dispute centred on whether Nicholson was entitled to access the information under the Privacy Act 1988. The Commissioner argued that the information was exempt from disclosure, as it was obtained in the course of an investigation into an alleged breach of law.

The central legal issue before the court was whether the Privacy Commissioner was correct in refusing Nicholson's application for access to the information. Specifically, the court had to determine whether the information Nicholson sought was exempt from disclosure under the Privacy Act, and if so, whether any public interest considerations outweighed the exemptions. The court also needed to address whether the Commissioner had adequately justified the refusal to disclose the information, given the statutory obligations and the public interest.

In dismissing the Commissioner's application for summary dismissal, the court found that there were genuine issues for trial. The court held that Nicholson had made out a prima facie case that the information was not exempt from disclosure, and that the Commissioner had failed to provide sufficient justification for the refusal. The court noted that the Commissioner had not provided detailed information about the nature of the investigation or the relationship between Nicholson and the Commonwealth, which were necessary to properly assess the exemption claims. The court also expressed concern about the lack of transparency in the Commissioner's decision-making process. Consequently, the court ordered the Commissioner to file and serve affidavits clarifying the relationship and identifying the relevant statutes and regulations by a specified date.

Orders

Orders of the court

That the application for summary dismissal be refused.

The matter be adjourned to 13 May 2010 at 9.30 a.m. for hearing.

The respondent do file and serve affidavits as to the relationship of the second respondent to the Commonwealth with respect to the applicant on or before 3 May 2010, identifying the relevant statutes and regulations.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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