NICHOLSON v Federal Privacy Commissioner
[2010] FMCA 190
•25 March 2010
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 endeavour, by conciliation, to effect a settlement of the matters that gave rise to the investigation;
…
(ab) subject to Part V – to investigate an act or practice of an organisation that may be an interference with the privacy of an individual because of section 13A and, the Commissioner considers it appropriate to do so, to attempt, by conciliation, to effect a settlement of the matters that gave rise to the investigation;
… (emphasis added)
Section 13A(1) of the Act provides, as a general rule, four situations where an organisation’s actions or practice may amount to an interference with an individual’s privacy:
(i)the act or practice relations to personal information that relates to the individual;
(ii)the organisation is a contracted service provider for a Commonwealth contract (whether or not the organisation is a party to the contract);
(iii)because of a provision of the contract that is inconsistent with an approved privacy code or a National Privacy Principle that applies to the organisation in relation to the personal information, the act or practice does not breach the code or Principle (see subsections 6A(2) and 6B(2));
(iv)the act is done, or the practice is engaged in, in a manner contrary to, or inconsistent with, that provision;… (emphasis added)
Sections 27(1) and 13A(1)(c)(ii) refer to three different types of entities:
(d)A contracted service provider;
(e)An organisation; and
(f)An agency.
Contracted Service Provider
Section 13A(1)(c)(ii) makes it clear that a ‘contracted service provider’ must be an ‘organisation’. Thus, for AMES to be a contracted service provided it would nonetheless have to be within the definition of an ‘organisation’ under the Act.
Organisation
Section 6C(1) of the Act defines an organisation as meaning:
6C. [Organisations]
What is an organisation?
(1) In this Act:
"organisation" means:
(a) an individual; or
(b) a body corporate; or
(c) a partnership; or
(d) any other unincorporated association; or
(e) a trust;
that is not a small business operator, a registered political party, an agency, a State or Territory authority or a prescribed instrumentality of a State or Territory. that is not a small business operator, a registered political party, an agency, a State or Territory authority or a prescribed instrumentality of a State or Territory. (emphasis added)
The Act excludes a ‘State or Territory authority’ from the definition of an organisation. For the purposes of the Act, State or Territory authority is defined in s.6C(3):
6C. [Organisations]
…
What is a State or Territory authority?
(3) In this Act:
State or Territory authority means:
(a) a State or Territory Minister; or
(b) a Department of State of a State or Territory; or
(c)a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a law of a State or Territory, other than:
(i) an incorporated company, society or association; or
(ii)an association of employers or employees that is registered or recognised under a law of a State or Territory dealing with the resolution of industrial disputes; or (emphasis added)
The phrase ‘established for a public purpose’ has been considered under the Freedom of Information Act 1982 (Vic) by the Victorian Supreme Court in Municipal Association of Victoria v VCAT [2004] VSC 146 (28 April 2004). At paragraph [26] Habersberger J observed:
In my opinion, in construing the expression "established for a public purpose", the Court is engaging in an historical exercise and should look at the Act which established the body, rather than at the current form of that legislation.. It is, therefore, irrelevant what work is currently performed by the body in question. The focus should be on what it was set up to do by its establishing legislation. Further, I agree with counsel that, when looking at the establishing legislation, one can also take into account, when deciding the purposes for which a body has been established, documents such as the body's constitution or rules when they have been referred to in the Act itself. (emphasis added)
AMES was originally established under s.1(ca) of the Adult Community and Further Education Act 1991 (Vic). That Act was repealed by section 6.1.1(a) of the Education and Training Reform Act 2006 (Vic), however AMES continues to be established as an adult education institution under s.3.3.26(1) of the Education and Training Reform Act 2006 (Vic):
3.3.26 [Adult Multicultural Education Services]
(1) There continues to be established an adult education institution called Adult Multicultural Education Services.
(2) The Board of AMES is the governing body of AMES and is constituted as a body corporate by Order in Council as provided for in this Division.
(3) The Board of AMES has the functions and powers conferred on it by this Division and by Order in Council made under this Division.
The functions of the Board of AMES is set out in s.3.3.30 of the Education and Training Reform Act 2006 (Vic):
3.3.30 Functions of governing boards
(1) The functions of the governing board of an adult education institution are to—
…
(c)provide the community served by the institution with efficient and effective adult, community, further education, vocational education and training, employment and other associated programs and services responsive to the needs of that community;
(d) consult with the relevant Regional Councils about the provision of these programs and services;
(e) in the case of the governing board of AMES, monitor the structure, reach and accessibility of AMES services to maximise their availability to new and emerging communities and client groups;
(f) in the case of governing boards except the governing board of AMES, make adequate arrangements for persons and groups which have not had or do not have adequate access to programs or services provided by the institution;
…
These functions mirror those that are set out in s.48(1) of the previous Act, the Adult Community and Further Education Act 1991.
The functions of the Board of AMES show that AMES is established for the public purpose of providing education. It is not a company registered under the Corporations Act 2001 (Cth) nor an incorporated society or association but a corporation sole. AMES is not an association of employers or employees within the meaning of s.6C(3). It is therefore a State authority as defined in s.6C(3)(c) of the Act. Thus, it is excluded from the definition of ‘organisation’ in s.6C(1).
Agency
Subsection 6(1) of the Act provides a definition for the word ‘agency’:
6. [Interpretation]
(1) In this Act, unless the contrary intention appears:
…
"agency" means:
(a) a Minister; or
(b) a Department; or
(c) a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a Commonwealth enactment, not being:
(i) an incorporated company, society or association; or
(ii) an organisation that is registered under the Fair Work (Registered Organisations) Act 2009 or a branch of such an organisation; or
(d)a body established or appointed by the Governor-General, or by a Minister, otherwise than by or under a Commonwealth enactment; or
…
(i) an eligible case manager; or
…
"eligible case manager" means an entity (within the meaning of the Employment Services Act 1994 ):
(a) that is, or has at any time been, a contracted case manager within the meaning of that Act; and
(b) that is not covered by paragraph (a), (b), (c), (d), (e), (f), (g) or (h) of the definition of agency .
AMES is a state authority established under Victorian legislation. Therefore it is not a body ‘established’ for a public purpose by or under a Commonwealth enactment in accordance with s.6(1)(c).
However, AMES may potentially be a body ‘appointed for a public purpose by or under a Commonwealth enactment’ within the meaning of s.6(1)(c) of the Act or alternatively an ‘eligible case manager’. The applicant says that she utilised services of AMES as a job network services provider. AMES was providing these services a result of a contract with the Department of Education, Employment, and Workplace Relations (DEEWR). There is no question that DEEWR is established and acting under a Commonwealth enactment.
The precise relationship of AMES and DEEWR must be considered in order to determine whether AMES is an agency within the provisions of the Act. The applicant is unrepresented and not able to clearly articulate her case. If the solicitors for the respondent are not in possession of that information, it may require a subpoena to DEEWR in order to determine its relationship with the Commonwealth.
Until there is an opportunity afforded to the applicant and respondents to provide evidence (and if necessary to utilize the processes of the court to subpoena that information) to demonstrate the precise relationship between the Commonwealth and AMES, and the legislative basis or power to which the relationship is referrable, it is not possible to determine with certainty whether AMES is within the ambit of the Privacy Act.
Conclusion
In the circumstances of this case, on the material presently before me, I cannot be satisfied that the application has no reasonable prospects of success to warrant summary dismissal pursuant to r.13.10(a) of the Federal Magistrates Court Rules 2006. I therefore refuse the summary dismissal application.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Allison Le
Date: 25 March 2010