Repatriation Commission v Hendy

Case [2002] FCA 823

FEDERAL COURT OF AUSTRALIA

Gao v Federal Privacy Commissioner [2002] FCA 823

ADMINISTRATIVE LAW – appeal under s 11(1)(c) Administrative Decisions (Judicial Review) Act 1977 (Cth) for extension of time – no grounds of review disclosed – proceeding an abuse of process.

PRIVACY LAW – alleged contravention of Information Privacy Principle (11)(1)(e) of the Privacy Act 1988 (Cth) – where government department made aware of false information provided on birth certificate – disclosure of information reasonably necessary for enforcement of the criminal law – no consent to disclosure of information required when disclosure reasonably necessary for enforcement of the criminal law – Information Privacy Principles not directly actionable under the Privacy Act 1988 (Cth) in any event.

Administrative Decisions (Judicial Review) Act 1977 (Cth): s 11(1)(c)
Federal Court Rules:  O 20 r 2(1)
Privacy Act 1988 (Cth): s 14

Gao v Federal Privacy Commissioner [2001] FCA 1683, followed
Gao v Federal Privacy Commissioner [2002] FCAFC 128, followed
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, applied
Lucic v Nolan (1982) 45 ALR 411, applied

PENG YUAN GAO v FEDERAL PRIVACY COMMISSIONER & ORS

V 298 of 2002

GOLDBERG J
19 JUNE 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 298 of 2002

BETWEEN:

PENG YUAN GAO
Applicant

AND:

FEDERAL PRIVACY COMMISSIONER
First Respondent

ROBERT GARRAN OFFICES,
ATTORNEY‑GENERAL’S DEPARTMENT
Second Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Third Respondent

JUDGE:

GOLDBERG J

DATE OF ORDER:

19 JUNE 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The application filed on 17 May 2002 is dismissed.

2.        The applicant pay the respondents’ costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 298 of 2002

BETWEEN:

PENG YUAN GAO
Applicant

AND:

FEDERAL PRIVACY COMMISSIONER
First Respondent

ROBERT GARRAN OFFICES,
ATTORNEY‑GENERAL’S DEPARTMENT
Second Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Third Respondent

JUDGE:

GOLDBERG J

DATE:

19 JUNE 2002

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. On 17 May 2002 the applicant applied to the Court pursuant to s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“AD(JR) Act”) for an extension of time within which to bring an application to review certain decisions made under the provisions of that Act. The applicant identified those decisions as follows:

    “1.DIMA was told not to disclose the privacy by applicant while the information collected for the purpose of verifying that Yu Jing ZHU [ZHU] committed the offence at Migration Act 1958, but DIMA was knowingly to disclose the privacy after 7 days collected information and take advantage of the privacy making application on behalf of applicant to another for different purpose without consent from applicant.  FPC alleged that to disclose the privacy in order to another to investigate whether a criminal offence had been committed or not.  So for the offence has not been prosecuted at all if it was criminal offence.

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Details
AGLC
Repatriation Commission v Hendy [2002] FCA 823
Case
[2002] FCA 823
Decision Date

CaseChat Overview and Summary

In the matter of Repatriation Commission v Hendy, the Federal Court of Australia was presented with a case where the applicant, presumably an individual who had experienced a breach of their privacy, sought judicial review of decisions made by the Federal Privacy Commissioner, the Attorney-General’s Department, and the Department of Immigration and Multicultural Affairs (DIMA). The applicant alleged that the Privacy Commissioner failed to adequately address their complaint, the Attorney-General’s Department declined to prosecute an individual for perjury, and DIMA had violated privacy laws by disclosing paternity test results. The crux of the legal issues before the court was whether the applicant could successfully challenge the decisions of these entities under the Administrative Decisions (Judicial Review) Act and whether the application was timely filed.

The court, through Ryan J, dismissed the application, finding that it did not disclose a reasonable cause of action. Firstly, regarding the Privacy Commissioner, the court held that the application was not only filed outside the prescribed period but also failed to identify any error of law or other grounds for review as permitted by the AD(JR) Act. Secondly, concerning the Attorney-General’s Department, the court determined that no basis for judicial review had been shown, as the decision not to prosecute was not subject to review by the court. Lastly, the court reiterated that any complaint against DIMA for privacy breaches should have been directed to the Privacy Commissioner and not to the court, and any such review would be subject to the same jurisdictional constraints and time limitations.

In conclusion, the court dismissed the application, emphasizing that the applicant’s action did not meet the necessary criteria for judicial review and was filed beyond the allowable time frame. The court made no specific order regarding costs at that time but indicated that any subsequent application would need to consider the circumstances of the current proceedings. The sole order made was the dismissal of the application.

Orders

Orders of the court

1. The application filed on 17 May 2002 is dismissed.

2. The applicant pay the respondents’ costs of the proceeding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GOLDBERG J
It will be recalled that the Federal Privacy Commissioner had made a decision not to take the applicant’s complaint in relation to the breach of the Information Privacy Principles any further, and that the applicant had been informed of that decision on 18 July 2000. The application was dismissed by Ryan J and his Honour’s reasons are set out in pars [7] to [11] of his Honour’s reasons for judgment: “[7.]The Commissioner apparently took the view that the disclosure to the Registry was ‘necessary for the enforcement of the criminal law’ within the privacy principle embodied in s 11(1)(e) of the Privacy Act. At all events, the application in its present form does not disclose how a review in this Court of the Commissioner’s decision is said to be available under the Administrative Decisions (Judicial Review) Act (‘the AD(JR) Act’). Even if the application had identified an alleged error of law or other ground of review afforded by the AD(JR) Act, it would still be more than twelve months out of time. I shall, therefore, dismiss the application against the Privacy Commissioner without prejudice to the applicant’s rights, if so advised, to apply for an extension of time in which to bring an application under the AD(JR) Act against that officer. [8.]I deal second with the respondent named as ‘the Attorney-General’s Department’. The applicant contends that Yu Jing Ju had committed perjury in the Family Court in relation to, amongst other things, the Commonwealth Bank draft. He complained to that effect to the Attorney-General’s Department but, after investigation, that Department declined to recommend to the Commonwealth Director of Public Prosecutions that Ms Ju be prosecuted for perjury. In a letter to the applicant dated 30 August 2001 the Department advised the applicant that it was precluded by the Privacy Act from disclosing to him what had been revealed by its investigation. [9.]Assuming in the applicant’s favour that the making of any decision within the meaning of the AD(JR) Act was reposed in the Attorney‑General’s Department rather than the Director of Public Prosecutions, no basis has been shown on the face of the application for this Court’s reviewing that decision under the AD(JR) Act or otherwise within the jurisdiction of this Court. [10.]I deal thirdly with the application against DIMA. As I understand it, the complaint against this department is for contravention of the Privacy Act on account of its conduct in conveying the results of the paternity test to the Registry of Births Deaths and Marriages. However, that complaint cannot be made directly to this Court. It must be made to the Privacy Commissioner under s 36 of the Privacy Act. As already noted in relation to the Privacy Commissioner, a decision by that officer rejecting such a complaint is reviewable by this Court under the AD(JR) Act but no right of review is exercisable against the agency which is alleged to have infringed the privacy of a complainant. Furthermore, I reiterate that the time within which a review of the applicant’s complaint to the Privacy Commissioner against DIMA has long since expired. Conclusion[11.]For the reasons which I have endeavoured to explain, the application in its present form does not disclose a reasonable cause of action and must be dismissed. I have adverted to the possibility that the action might be reinstated or recommenced in a different form, particularly if leave is sought for an extension of time within which to bring certain applications under the AD(JR) Act. At present I make no order as to the costs of the present application but I indicate that if the applicant should seek to revive the substance of these proceedings in this Court or elsewhere, the fact of these proceedings and this order, which I make today should be taken into account in the exercise of any discretion as to the costs of the subsequent proceedings. Accordingly, the only order of the Court which is made today is that the application be dismissed.”

Ratio Decidendi

Legal Principle Established

Established by: GOLDBERG J

Full text does not contain this section.