Rana and Office of the Australian Information Commissioner

[2017] AATA 1398

Rana and Office of the Australian Information Commissioner [2017] AATA 1398 (4 August 2017)

Division:GENERAL DIVISION

File Number:           2017/3249

Re:Ranjit Rana

APPLICANT

Office of the Australian Information CommissionerAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Britten-Jones

Date:4 August 2017

Date of written reasons:        29 August 2017

Place:Adelaide

For the reasons given orally at the conclusion of the hearing, the application for an extension of time is refused.

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Senior Member Britten-Jones

CATCHWORDS

PRACTICE AND PROCEEDURE – Jurisdiction - Application for extension of time to lodge an application for review of decisions of the Australian Information Commissioner – whether a decision was made under s 41 or 52 of the Privacy Act 1988 – relevant decision made under s 41(1)(a) of Privacy Act - Tribunal does not have jurisdiction – extension of time is refused.

LEGISLATION

Administrative Appeals Tribunal 1975 (Cth), s 25

Privacy Act 1988 (Cth), s 41 & 52

CASES

Re Beinstein v Commonwealth Ombudsman [2003] AATA 1197, (2003) 38 AAR 270

Rana v Google Inc (No2) [2017] FCA 17

Rana V Google Inc [2017] FCA 542

REASONS FOR DECISION

Senior Member Britten-Jones

29 August 2017

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish him with a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by DTI Corporation Australia Pty Ltd.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3. The said transcript is annexed hereunto and furnished to the applicant and to the respondent as it is the reason for the Tribunal’s decision.

I certify that the following  paragraphs are a true copy of the reasons for the decision herein of Senior Member Britten-Jones

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Administrative Assistant

Dated: 29 August 2017

Date(s) of hearing:	4 August 2017
Applicant:	In person
Advocate for the Respondent:	Mr R Prince
Solicitors for the Respondent:	Australian Government Solicitor

EXTRACT OF TRANSCRIPT PROCEEDINGS

1. SENIOR MEMBER:  I will give you my decision now but I will give you reasons.  Those reasons will necessarily be probably slightly inelegant but I think it is important that we deal with the matter quickly and so, in that sense, I will do my best to do justice to the very helpful submissions.  So I will commence those reasons now.

2. This is an application by Mr Ranjit Rana for an extension of time for review of decisions of a delegate of the Australian Information Commissioner.  The application for review of decision was filed by Mr Rana on 5 June 2017, and the decision that is complained of in that application, was a decision which Mr Rana said that he received on 22 March 2016.  From the hearing today it is apparent from Mr Rana that, in fact, the decisions which he seeks to appeal are, in fact, dated 28 June 2016 and 22 July 2016.

3. As a result of being out of time as at 5 June 2017 to appeal from those decisions, Mr Rana sought an extension of time by an application which was filed on 9 June 2017.  Under section 29(7) of the Administrative Appeal Tribunal Act, the Tribunal may extend the time for making an application for review, if the Tribunal is satisfied that it is reasonable in all of the circumstances to do so, and that is an issue to which I will draw my attention to later in these reasons.

4. However, there is a preliminary issue which goes to the question of the jurisdiction to make an application for review with respect to the decisions that have been made. This involves, then, a consideration of exactly what decision was made, and the powers under which the decision was made. On the face of the decisions made in June and July of 2016, the decisions are made under section 41(1)(a) of the Privacy Act 1988 (Privacy Act). 

5. However, it is submitted by Mr Rana that when one looks deeper at the circumstances with respect to the decision, and the matters that were being considered with respect to the decisions, that it amounted to a decision made under section 52 of the Privacy Act. I will consider, firstly, section 41(1)(a) of the Privacy Act. It says that:

   The Commissioner may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made under section 36 if the Commissioner is satisfied that: 

   relevantly –

   (a)     the act or practice is not an interference with the privacy of an individual.

   …

6. Section 52 of the Privacy Act deals with a determination being made by the Commissioner following an investigation of complaints. It says in subsection (1) that:

   (1) After investigating a complaint, the Commissioner may:

   (a)         make a determination dismissing the complaint; or

   (b)         find the complaint substantiated and make a determination that includes …

   certain declarations. The effect of the submission from Mr Rana is that there was, in fact, a decision made under section 52. What he says is that whilst accepting that there is a two-step process, there was a consideration of his complaint under section 41, but that his complaint was prematurely dismissed in an arbitrary or capricious manner, which resulted in him not being able to proceed to obtain a determination under section 52.

7. Of course, if Mr Rana had obtained a determination under section 52, then there would be no issue that this Tribunal has jurisdiction to determine a review. However, the point that is put against Mr Rana by the respondent is that all of the facts points to a decision being made under section 41(1)(a) of the Privacy Act. In particular, reference is made to the terms of the decisions.

8. Firstly, the decision made on 28 June 2016, which refers to the privacy complaints being made by Mr Rana with respect to Twitter, Facebook and Google under section 36 of the Privacy Act. The letter then goes on to refer to an earlier letter sent by the Commissioner on 22 March 2016, which is a letter that invited submissions from Mr Rana with respect to the potential for a decision being made under section 41(1)(a) of the Privacy Act.

9. Having received that letter on 22 March 2016, Mr Rana then proceeded to send numerous emails to the Commissioner in March and April of 2016. The Commissioner in his letter of 28 June 2016 refers to those communications. The Commissioner says that points raised in those communications have been considered, but then advises that the Commissioner has decided to close the complaint against Twitter because the information being complained about is part of generally available publication and, therefore, not covered by the accuracy obligations in the Privacy Act.

10. The 28 June letter goes on, then, to deal with the Twitter complaint specifically, and some of the matters that were raised in that complaint. In particular with respect to section 6 definitions under the Privacy Act, and concludes that pursuant to section 41(1)(a) of the Privacy Act, the Commissioner has decided not to investigate your complaint against Twitter. The second letter from the Commissioner, dated 22 July 2016 confirms the position in respect to Twitter and ‑ ‑ ‑

    MR PRINCE:  Excuse me, Senior Member.  I am sorry to interrupt.  Mr Rana has indicated he needs a comfort break again.

    SENIOR MEMBER:  Yes.  Yes.

    MR RANA:  Sorry.

    SENIOR MEMBER:  Thank you.  We will just wait here.

    SHORT ADJOURNMENT  [12.13 pm]

    RESUMED  [12.15 pm]

11. SENIOR MEMBER: I will continue. The second letter dated 22 July 2016 confirms the decision to not further investigate with respect to Twitter, and provides for the decision to, under section 41(1)(a) of the Privacy Act, to close complaints with respect to Facebook. Mr Rana, in his submissions, with respect to jurisdiction, made submissions that the decision-maker failed to consider properly materials that had been provided by him and, in particular, materials related to social network aggregation, which materials are found behind tab 8 in Exhibit 1, being the bundle of material provided by the respondent today.

12. Mr Rana said that the Twitter account investigation was closed without him being given an opportunity to explain how the social network aggregation identified him.  Further, Mr Rana said that the decision-maker did not exercise the power required by law.  With respect to the decisions regarding Twitter and Facebook, he said that they were what amounted to a disingenuous decision made by a decision-maker who never responded to emails, and who summarily dismissed the complaints without reading his submissions on social network aggregation.

13. Mr Rana developed his submissions such that he contended that what, in fact, happened was a constructive decision under section 52. He says that he was entitled to get a decision under section 52, but that the Commissioner lumped it all together by refusing to investigate and, therefore, effectively shut him off at the gate, such that he was not able to get to the position where a reviewable decision was, in fact, made. He said that it was an arbitrary and a capricious decision to refuse to investigate, so that he could not obtain a decision which could be reviewed.

14. In reply to some submissions made by the respondent, which I will go into in a moment, Mr Rana said that he understood that the Privacy Act provided for a two-step process with respect to sections 41 and section 52, but he complained that the Commissioner had not properly satisfied himself with respect to section 41(1)(a) and, in particular, to his finding that there was not an interference with privacy of an individual.

15. He said that the Commissioner failed to provide any reasons as to why there was no interference with the privacy of an individual, and that he was provided with no reasonable explanation for the decision to not investigate and, therefore, he was put in a position that he could not get to a reviewable decision under section 52.

16. Now, the submissions from the respondent identified that the relevant decision was made under section 41(1)(a) of the Privacy Act. Reference was made to an authority of Re Beinstein v Commonwealth Ombudsman [2003] AATA 1197 of Forgie DP, where she identifies at paragraph 11 that with respect to determining whether the Tribunal has the power to review a particular decision, the first thing is to identify precisely the decision of which review is sought, and then, second, to identify whether there is an enactment providing that an application may be made to the Tribunal for a review of that decision or class of decision.

17. Firstly, with respect to identifying the decision, the respondent points to the two letters of 28 June 2016 and 22 July 2016, and with respect to the substance of those decisions, any suggestion of a sham or capricious or arbitrary behaviour is rejected by the respondent.  The respondent’s counsel points to the fact that the Commissioner first wrote to Mr Rana on 22 March 2016, giving an opportunity for him to respond to a potential decision to decline to investigate, and that Mr Rana did so, and that the material provided in response was considered in the ultimate decisions that were made to no longer investigate.

18. When one considers the terms of section 41(1)(a), there is some work to be done by the Commissioner before he can make a decision not to investigate. Namely, in this case, the Commissioner must be satisfied that the act in question is not an interference with the privacy of an individual. It is that very issue which is the subject of the letters which constitute the decisions made on 28 June and 22 July. Those letters address that issue upon which satisfaction is required before the decision can be made.

19. It is, therefore, my finding that the decisions made on 28 June and 22 July, were decisions made under section 41(1)(a), which related to the question of interference with the privacy of an individual or not. That is apparent from the terms of the letters. It is also my finding that with respect to the issue in section 41(1)(a), Mr Rana was given opportunity to provide submissions and materials with respect to that issue, and that he did so, and that those materials and submissions were taken into account when the decision was made.

20. I reject the suggestion of a sham or of the decision-maker acting in an arbitrary or capricious manner, and I reject the submission that the conduct of the decision-maker amounted to a decision under section 52. It is clear that the conduct of the Commissioner was limited to the matters raised in section 41(1)(a), and that the Commissioner did not proceed with a full investigation in the nature of section 52 of the Privacy Act. I was referred to certain sections of the Privacy Act by the respondent, with respect to the conduct of investigations.

21. I note in passing section 43 dealing with the process by which the party making the complaint is to be informed of an investigation, and that the interested party may request a hearing under section 43A. That the Commissioner has the power to obtain information and documents under section 44, and the power to examine witnesses under section 45, and the power to direct persons to attend a compulsory conference under section 46, and other related provisions leading up to the provision in section 52, which is predicated on after the investigation of a complaint the Commissioner, having certain powers.

22. It is my finding that there has been no investigation and, therefore, no decision under section 52. It was quite clearly a decision under section 41(1)(a) of the Privacy Act. Given my finding that the decisions were made under section 41(1)(a), one must then consider whether or not there is jurisdiction in the Tribunal to entertain an application for a review of a decision under that section.

23. It is necessary first to note section 25 of the Administrative Appeals Tribunal Act, that the Tribunal may review certain decisions and, in particular, that an enactment may provide that applications may be made to the Tribunal for review of decisions. The relevant enactment in this case is the Privacy Act and, in particular, section 96, which deals with review by the Administrative Appeals Tribunal. It says under subsection (1), that:

    An application may be made to the Administrative Appeals Tribunal for review of the following decisions of the Commissioner:

    …

24. It then lists decisions under the Privacy Act, namely section 26H(1), section 26S(1), section 52(1) or section 52(1A), section 73(1A), section 95, section 95A(2) or (4), or 95AA(2) or 95A(6).

25. It is noted that section 41 does not appear in the list of sections about which an application for review can be made.  Without any legislation providing for review by the Administrative Appeals Tribunal, there can be no jurisdiction.  It is a fundamental of the AAT’s jurisdiction that it must be conferred by an enactment.  It has no general jurisdiction, and there are numerous authorities for that proposition.

26. Accordingly, it is my finding that there is no jurisdiction for the Tribunal to hear any application for review of the decision as sought by Mr Rana in his application of 5 June 2017.  It is, therefore, not necessary for me to consider the question of an extension of time given the Tribunal lacks jurisdiction.  However, I note that the parties have made submissions with respect to the extension of time.  I will make some brief comments, although they will not be comprehensive. 

27. Mr Rana said that he had what amounted at least to an arguable case that there was a determination that was made under section 52, and that the decision to decline to proceed with the investigation, was one that was wrong. The decision as found within the letters from the Commissioner, dated 28 June 2016 and 22 July 2016, in my view disclosed no error. They referred appropriately to the matters raised by section 41(1)(a), and I reject any suggestion of a failure to provide procedural fairness to Mr Rana with respect to the hearing and the decision made under section 41(1)(a).

28. I would, therefore, consider that Mr Rana does not have an arguable case.  I note that Mr Rana provided some explanation for the 10 month delay from about August 2016 through to June of 2017.  That explanation primarily related to the fact that he was pursuing rights which related to Google in the Federal Court for defamation, and Mr Rana sought to make a connection between that case in the Federal Court, and the decisions with respect to Twitter and Facebook made by the Commissioner, by referencing certain documents that were filed in the Federal Court action on 4 October 2016.

29. Whilst those documents do appear on their face to make reference to complaints regarding Twitter and Facebook, amongst other social media outlets, I note that in the decision of Charlesworth J[1] at paragraph 25, that there was a direction by Charlesworth J not to accept those documents, except with leave of the court, and Mr Rana said that leave of the court was never obtained.  So it would appear that there still is a significant period of time for which no explanation is provided, namely sometime from in or around October 2016 through to June of 2017.

    [1] Rana v Google Inc (No 2) [2017] FCA 17

30. Nevertheless, Mr Rana has provided, in a sense, an explanation that it was not until the hearing of an application for leave to appeal before White J in May of 2017,[2] that he turned his mind to this application for review in this court, and if it was not for the fact that Mr Rana does not have an arguable case, I probably would have accepted the reasons given for the delay. 

    [2] Rana v Google Inc [2017] FCA 542

31. The result of my decision, then, is to declare that the Tribunal does not have jurisdiction to entertain any application for review with respect to the subject decisions in this case, and to accordingly dismiss the application for extension of time.  They are my reasons. 

    END OF ORAL DECISION  [2.42 pm]