Rodolico v Privacy Commissioner
[2006] FMCA 173
•8 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RODOLICO v PRIVACY COMMISSIONER | [2006] FMCA 173 |
| PRIVACY – Privacy Commissioner – Judicial review of decision made by Commissioner – refusal by Commissioner to investigate applicant’s complaint – complaint concerned individuals rather than a government agency – application dismissed. |
| Administrative Decisions (Judicial Review) Act 1977 Privacy Act 1988, ss.6, 13, 14, 41 |
| Applicant: | BENEDICTO RODOLICO |
| Respondent: | PRIVACY COMMISSIONER |
| File Number: | MLG 9 of 2006 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 8 February 2006 |
| Date of Last Submission: | 8 February 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 8 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Ms Arduca |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 14 November 2005 be dismissed.
Any submission for a costs order be made within 14 days.
The respondent reply to any submission for a costs order within a further 14 days
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 9 of 2006
| BENEDICTO RODOLICO |
Applicant
And
| PRIVACY COMMISSIONER |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application for judicial review of a decision of the Privacy Commissioner under the Privacy Act 1988 (“the Act”). On 6 October 2005 the applicant wrote to the Privacy Commissioner in the following terms:
Dear Sir or Madam
SUBJECT: PRIVACY ACT
One or both of the persons residing at 12 Leyland Road FernTree Gully has breached the Privacy Act in relation to my personal information that should only be accessible to relevant Government Agencies. The details of the incident that occurred on 14th September 2005 are listed below.
“The incident occurred on September 14, 2005 at a local petrol Station, that I had entered to get petrol. At the time of the incident, there was only the two of us there, and the console operator. The Petrol Station is located directly across from the Coles store at the Mountain Gate Shopping Centre. The statement made by the male was “Now you’ll have to get a job”, seeing that I was currently deciding whether to take a position in a city firm for two days a week, or commencing working a day a week with disabled children for the Mutual Obligation prerequisite for Centrelink. The statement alluded to the fact that he knew my employment circumstances, which I found quite disturbing, and left me concerned on how he acquired the information. This person is an ex-convict and he and his defacto live at 12 Leyland Road FernTree Gully, in a Housing Commission House.”
Sincerely
Ben Rodolico
As a result of the comments made at the Petrol station by a person unknown to the applicant (“the unknown person”), the applicant wrote to Centrelink to make a complaint about this issue on the assumption that Centrelink must have failed to keep his information private. The applicant did so on the basis that he did not believe any other person that knew of his employment situation would have been likely to advise the unknown person of his circumstances. Therefore, in the applicant’s view, the information must have come from Centrelink.
The applicant received correspondence back from Centrelink and was not satisfied with their response. He then wrote to the Privacy Commissioner.
The Privacy Commissioner responded to the applicant's complaint, stating that the Act did not apply to individuals acting in a personal capacity. The Privacy Commissioner may decide not to investigate certain complaints under section 41 of the Privacy Act 1988. That section is in the following terms:
Section 41 - Circumstances in which Commissioner may decide not to investigate or may defer investigation
(1)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, or which the Commissioner has accepted under subsection 40 (1B), if the Commissioner is satisfied that:
(a)the act or practice is not an interference with the privacy of an individual;
(c)the complaint was made more than 12 months after the complainant became aware of the act or practice;
(d)the complaint is frivolous, vexatious, misconceived or lacking in substance;
(e)the act or practice is the subject of an application under another Commonwealth law, or a State or Territory law, and the subject-matter of the complaint has been, or is being, dealt with adequately under that law; or
(f)another Commonwealth law, or a State or Territory law, provides a more appropriate remedy for the act or practice that is the subject of the complaint.
(2)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, or accepted by the Commissioner under subsection 40(1B), if the Commissioner is satisfied that the complainant has complained to the respondent about the act or practice and either:
(a)the respondent has dealt, or is dealing, adequately with the complaint; or
(b)the respondent has not yet had an adequate opportunity to deal with the complaint.
(3) The Commissioner may defer the investigation or further investigation of an act or practice about which a complaint has been made under section 36, or accepted by the Commissioner under subsection 40(1B), if:
(a)an application has been made by the respondent for a determination under section 72 in relation to the act or practice; and
(b)the Commissioner is satisfied that the interests of persons affected by the act or practice would not be unreasonably prejudiced if the investigation or further investigation were deferred until the application had been disposed of.
In this case regard must be had to the meaning of ‘interference with privacy’ which is set out in section 13 of the Act and the information privacy principles set out in section 14 of the Act. Section 13 refers to acts undertaken by an agency and an agency is defined in section 6 of the Act in the following terms:
Section 6 – Definitions
"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 within the meaning of the Conciliation and Arbitration Act 1904 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
(e)a person holding or performing the duties of an office established by or under, or an appointment made under, a Commonwealth enactment, other than a person who, by virtue of holding that office, is the Secretary of a Department; or
(f)a person holding or performing the duties of an appointment, being an appointment made by the Governor-General, or by a Minister, otherwise than under a Commonwealth enactment; or
(g)a federal court; or
(h)the Australian Federal Police; or
(i)an eligible case manager; or
(j)the nominated AGHS company; or
(k)an eligible hearing service provider.
There is nothing in the material to indicate that the two unnamed persons would fall within the definition of ‘agency’, which in a general sense refers to various government departments and organisations associated with those departments and the persons carrying out duties or holding office in those departments.
In the course of argument it became clear that the intention of the applicant was to make a complaint requesting the Privacy Commissioner investigate the Department of Social Security which is clearly an agency within the meaning of the Privacy Act. That, however, is not what is set out in the letter, which is quite clearly referring to individuals. In these circumstances there does not appear to have been any error of law or other error that would be judicially reviewable under the Administrative Decisions (Judicial Review) Act 1977 with respect to the Privacy Commissioner's determination not to investigate this particular complaint.
Whilst there was not a formal application before me to dismiss this claim on that basis, the applicant consented to it being dealt with this morning rather than having the further costs of the Commissioner's solicitors applying to have it struck out on a later date and it being argued again. The applicant, it appears, will be lodging a fresh complaint with respect to the Department of Social Security or Centrelink which the Commissioner will then have to consider.
Whether or not the Commissioner will decide to investigate any fresh complaint is a matter solely for the Commissioner. It is not appropriate for me to provide any directions or comment about that because it will depend entirely upon what the terms of that complaint are once it is assessed by the Commissioner. Although, for the benefit of the applicant, I note that section 41(1)(d) does give a broad discretion to the Commissioner not to investigate if a complaint is frivolous, vexatious, misconceived or lacking in substance.
Whilst no-one would suggest that the applicant’s concerns that information may have been disclosed by an officer of Centrelink was frivolous, the applicant may need to carefully consider whether or not there is sufficient substance in the material that he forwards to the Privacy Commissioner to properly enable the Commissioner to make an investigation into the matter.
In that sense there could arise a question of whether a complaint lacks substance. However, until such complaint is made and an outcome received, I cannot make any particular finding on precisely what the terms ‘lacks substance’ mean, nor, whether or not this case would or would not fall within that.
In the circumstances, I therefore dismiss the application before the court.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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