Wiltshire v Office of the Privacy Commissioner - [2009] FMCA 661

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILTSHIRE v OFFICE OF THE PRIVACY COMMISSIONER

[2009] FMCA 661

ADMINISTRATIVE LAW – Application to review decision of Office of the Privacy Commissioner – alleged errors by Child Support Agency – failure to pursue appeal to SSAT – consideration of OPC’s decision.

Privacy Act 1988, ss.14, 36
Child Support (Assessment) Act 1989, ss.161, 181
Administrative Decisions (Judicial Review) Act 1977, s.5

Bailey v Child Support Registrar [2008] FMCA 1215

Applicant:

GAVIN JOHN WILTSHIRE

Respondent:

OFFICE OF THE PRIVACY COMMISSIONER

File Number:

MLG 76 of 2009

Judgment of:

Burchardt FM

Hearing date:

12 June 2009

Date of Last Submission:

12 June 2009

Delivered at:

Melbourne

Delivered on:

28 August 2009

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Ms Arduca

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed 21 January 2009 be dismissed.
The Applicant shall pay the Respondent’s costs fixed in the sum of $11,000.00, with a stay of 60 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 76 of 2009

GAVIN JOHN WILTSHIRE

Applicant

And

OFFICE OF THE PRIVACY COMMISSIONER

Respondent

REASONS FOR JUDGMENT

By an application filed on 21 January 2009, the applicant,

Mr Wiltshire, seeks to review a decision of the Office of Privacy Commissioner (“the OPC”). That decision was a decision made on

24 December 2008
to cease to investigate a complaint made by the applicant under s.36 of the Privacy Act 1988 (“the Privacy Act”).
The orders sought are broad-ranging and include “a complete review of the Office of Privacy Commissioner's decision as it pertained to the collection of information by the Child Support Agency (“the CSA”), specifically looking at the term custody and control of documents in s.181 of the Child Support (Assessment) Act 1989 (“the Child Support (Assessment) Act”) and also taking into consideration my standing and control of such documents from a private company and separate legal entity”. Without setting out all the proposed orders, the applicant seeks production of documents on a very broad base and seeks a finding that the Child Support Agency exceeded its powers of collection and that its assessment was flawed.
The affidavit filed in support of the application sets out a history of Mr Wiltshire's experiences and his complaints arising from them. Essentially, however, it complains once again that the CSA assessments that have given rise to this application were wrong.
In one sense, the way in which Mr Wiltshire has articulated his complaint shows the inherent flaw in his methodology. In his oral submissions, Mr Wiltshire has essentially raised, as his ground of complaint, the inaccuracy, as he puts it, of the CSA's original child support assessment.
In order to understand those complaints, it is necessary to traverse the history of the child support controversy which is summarised in the written submissions of the respondent and from which I draw the following. In 2007, the CSA conducted an investigation into Mr Wiltshire's financial circumstances and to do so collected information relating to him from the Australian Taxation Office and Wiltshire Enterprises Pty Ltd.
The CSA provided the applicant with a summary of the information it collected and invited him to respond to that information before it made a decision to change his child support assessment. On 5 December 2007, a notice of decision was made by Senior Case Officer

Heather Whittle. By that decision, Mr Wiltshire's income for the period 1 December 2007 to 28 February 2009 was set at $109,135, this being the maximum statutory amount, although the decision itself set out reasons why Ms Whittle assessed Mr Wiltshire's income at about $119,000 per annum.
The Registrar had initiated a change to the assessment on the basis that Mr Wiltshire's child support income did not accurately reflect his capacity to provide child support for his child, Nathan, on the basis of his current income and financial resources from employment with a related family company. I note that Ms Whittle’s decision says that:
“Both parents were advised of the registrar's intention of this matter in separate letters dated 22 October 2007. At that time, both parents were invited to respond to the registrar's claim within 14 days of the receipt of their letter. Advice was also provided that if they did not respond to the letter, their case would be reviewed by a Senior Case Officer and a decision would be made based on the information available to the Registrar.”
Information available to the Registrar was paraphrased at pages 3 to 4 of the decision. It purported to show broadly that Mr Wiltshire had substantial interest in the company, Wiltshire Pty Ltd.
Mr Wiltshire did respond to those claims (see pages 4 to 5 of the decision) but Ms Whittle went on to find that he was the primary income earner involved in the company. Indeed, ultimately,

Ms Whittle found that the entirety of the income should be allotted to Mr Wiltshire.
Mr Wiltshire took objection to that decision by a letter ostensibly dated 27 December 2006, which must have been a typographical error.

That was then the subject of a further decision forwarded to Mr Wiltshire by a letter dated 6 March 2008 from Bill Lodge, the CSA State Manager. That decision, which is Exhibit A1, reviewed the matter.

It is not necessary to work through all the matters that the decision‑maker set out but they appear to traverse the materials comprehensively.
Mr Wiltshire in his oral submissions particularly drew my attention to paragraphs 5 and 7 on page 6 of the decision. He asserted that an income said to have been disclosed of $52,700 for the 2004-05 financial year was in fact income from 2002-2003. He said that that methodological inaccuracy infected the rest of the decision‑making process.
He also drew attention to the fact that the decision‑maker, when arriving at a final conclusion, omitted to take account of the fact that his $52,700 figure was in any event a gross, not a net figure, and excluded certain expenses. He also pointed out that the decision‑maker used the phrase, "This brings me to an approximate income figure of $80,000", and that that was therefore no more than a guess.
Mr Wiltshire appealed to the Social Security Appeals Tribunal but withdrew that appeal. He elected to pursue the matter through the Office of Privacy Commissioner instead, which he did by a letter dated 21 May 2008. That letter, Annexure 8 to his written submissions, referred specifically to principle 8 of the privacy principles (IPP 8) established under s.14 of the Privacy Act.
His complaint, as set out there, was that the CSA had used information that did not pertain directly to him and was not verified as accurate or complete.
On 1 December 2008 the OPC responded, indicating a preliminary view that the complaints made by Mr Wiltshire were not made out. The letter pointed out that this preliminary view was based on the arguments that Mr Wiltshire and the CSA had put forward but that the matter was by no means concluded.
At pages 3 and following of the letter, the OPC indicated that the collection of the material by the CSA which raised the issue of IPP 1, was proper "being that of ensuring that you are paying the appropriate financial support for your child".
The letter went on to deal with IPP 2 which requires that information be collected by lawful and fair means. The complaint that Mr Wiltshire had made in this regard was that the collection of information from Wiltshire Enterprises Pty Ltd was unlawful because it did not relate to him personally.
The OPC took the view that the powers of the CSA pursuant to s.161 of the Child Support (Assessment) Act were broad enough to permit this collection of information.
Counsel for the OPC drew my attention to the breadth of the functions and powers given to the CSA contained in Part 6A of the Child Support (Assessment) Act.
I accept that the CSA has broad powers to investigate and seek information and in particular, has the very broad powers available in s.161 of the Child Support (Assessment) Act.
I note that in Bailey v Child Support Registrar [2008] FMCA 1215, Riethmuller FM took the view that the powers under s.161 are broad and are not trammelled by other legislative provision.
In short, I accept the submission that the powers given to the CSA under s.161, taken in discharge of its functions under Part 6A of the Child Support (Assessment) Act, are sufficiently broad that it was proper for the CSA to have made the investigations it did.
It should be noted that in a sense this is a merit finding, but it is clear on any view that the complaint as raised by Mr Wiltshire in this regard does not constitute any error within the meaning of s.5 of the Administrative Decisions (Judicial Review) Act 1977.
Next, I accept the short-form submission made by counsel that IPP 9 was not contravened. It is clear that the information obtained by the CSA was used for purposes relevant to its functions.
Finally, I accept the submissions of the respondent as to any potential breach of IPP 8. It is true, as counsel submitted, that the primary focus of Mr Wiltshire's submissions was concerned with the correctness of the CSA's findings. These were all findings of fact and had no bearing upon breaches of privacy.
Mr Wiltshire could have provided an income statement but failed to do so. The findings of the OPC to the effect that the steps taken by the CSA were reasonably sufficient to secure the accuracy of the information is once again a finding of fact by the OPC. To say that it is wrong is not to say that it is an error of law.
The OPC was not required itself to make a detailed review of the way in which the CSA had reviewed the applicant's income or to check whether its calculations were done correctly. It was required only to form a view as to whether the CSA had taken reasonable steps to ensure the accuracy of its deliberations.
None of the matters asserted by the applicant give rise to an error of law and the application must be dismissed.
It should be noted finally that both in his affidavit and before the Court, Mr Wiltshire confirmed that he had elected not to pursue the matter by way of appeal to the Social Security Appeals Tribunal. He said words to the effect that he was still considering his position in that regard.
If the assertions made by Mr Wiltshire were correct, then plainly his better course of action would have been to proceed before the Social Security Appeals Tribunal. It is unfortunate that he has sought to pursue exactly those sorts of criticisms of the factual matters decided by the CSA, first through the OPC and now in this Court, when he had otherwise available to him a review giving him every opportunity to agitate those matters in the Social Security Appeals Tribunal.
Finally, I should note that nothing in this decision should be taken to say that Mr Wiltshire's criticisms of the CSA's findings are either correct or incorrect. That is not part of my function.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Ms B. Evans

Date: 28 August 2009