Clarke, Roger; Dixon, Tim --- "Privacy Act 1988 (Cth) amendments to complaints, procedures, remedies" [1994] PrivLawPRpr 10; (1994) 1(1) Privacy Law & Policy Reporter 15

---

Privacy Act 1988 (Cth) amendments to complaints procedures, remedies

Law and Justice Legislation Amendment Act 1993 (Cth), Pt 3 - commenced 18 January 1994

Part 3 of the Law and Justice Legislation Amendment Act 1993 makes numerous amendments to the Privacy Act 1988, principally so as to make the Act's complaints procedures more consistent with those found in the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth), all of which are administered by Commissioners of the Human Rights and Equal Opportunity Commission (HREOC). Most of the amendments are directed at the procedures concerning the investigation of complaints by the Commissioner, and the enforcement of any determinations that made.

Determinations by the Commissioner are no longer per se binding between the parties (new s52(1B)). They become binding by virtue of the operation of the new Divs 3 and 4 of Pt V. The existing Divs 3 and 4 are repealed 'Appeals' against Commissioner's decisions by 'private' respondents to complaints. New Div 3 of Pt V deals with the Commissioner's determination of complaints where the respondent is not a Commonwealth agency or the principal executive of an agency (s54). It is therefore likely to be relevant to most credit reporting complaints and some tax file number complaints, but less likely to be relevant to complaints arising under the Information Privacy Principles (IPPs), the Data-matching Program (Assistance and Tax) Act 1990, or Medicare Guidelines under s135AA of the National Health Act 1952. The purpose is to provide such ''private' respondents with a right to have the Commissioner's determination reviewed by the Federal Court (although ''private' could here include a State agency, or other Commonwealth-established bodies which are not ''agencies').

Determinations against such non-agency respondents are to be registered by the Commissioner in the Federal Court (s54(2)), and the Commissioner must notify the complainant and respondent of registration within seven days s54(4)). Upon registration, the determination has effect as if it were an order of the Federal Court (s55(1)), but no action to enforce it may be taken before the end of the ''normal application and review period' (s55(3)). Applications for review must be made 28 days after the determination is registered (s55(7)). If a review is sought, the ''normal application and review period' extends until the review is completed (s55(11)). Failure by the respondent to comply with a positive requirement of a determination during this period is not a contravention (s55(4)), but the explanatory memorandum notes that action taken by a respondent during this period to frustrate the terms of the determination may amount to contravention. During the 28 days the respondent may apply to the Federal Court for a review of the determination (s55(5)). The applicant has no such right to apply for review, and would be limited to otherwise available administrative law remedies against the Commissioner (if any). Provision is made for the Federal Court to allow review in ''exceptional circumstances' outside the 28 days (s55(7)).

Where a review is sought, the parties are the applicant (that is, the respondent to the complaint) and the complainant (s56(2)), but the Commissioner is not a party. The court may review all issues of fact and law (s56(4)), and may make such orders as it thinks fit (s56(6)). A party cannot adduce new evidence without leave of the court (s56(5))

Consistent approach to complaints against agencies

New Div 4 of Pt V provides a unified approach to any determinations made against agencies or principal executives of agencies, whether the complaint relates to (for example) the IPPs, tax file numbers, data-matching, or the Medicare Guidelines. The new provisions are based on the old Div 3 concerning the IPPs. Determinations against agencies are not required to be registered in the Federal Court. A respondent agency is required to comply with the terms of a determination (s58), from when it is made. Principal executives of agencies must take steps to ensure such compliance (s59). However, either a complainant or the agency may apply to the Administrative Appeals Tribunal for a review of any compensation or expenses awarded to a complainant (or refusal of same), but an agency may seek such a review only with the permission of the Minister s61)

''Opting out' provisions for representative complaints

A new regime for representative complaints replaces the existing s38 and s39. The new provisions define a representative complaint (s38), which must describe or otherwise identify the class members, but need not name them or specify how many there are. The Commissioner may, on application by the respondent or on his or her own initiative, determine that a complaint should no longer continue as a representative complaint (s38A). The Commissioner is also empowered, on application by a class member (that is, any of the persons on whose behalf the complaint was lodged), to replace the complainant by another class member (s38B(1)). The Commissioner may also amend a complaint by altering the class of persons on whose behalf it is lodged, so that it can be dealt with as a representative complaint (s8C).

A class member may, by notice in writing to the Commissioner, withdraw from a representative complaint at any time before the Commissioner begins to hold an inquiry into the complaint (s38B(2)). A person who so withdraws is no longer a ''class member'. A person who is a class member is not entitled to lodge a complaint in respect of the same subject matter (s39), in contrast to the previous s39 which provided that they could. This is the ''opt out' approach to representative complaints

Damages in representative complaints

The previous restriction preventing the Privacy Commissioner from awarding damages in representative complaints is removed (amendment to s52(1)(b)(iii)). Where compensatory damages are awarded, the determination ''may provide for payment of specified amounts or of amounts worked out in a manner specified' (new s52(4)). The explanatory memorandum notes that ''the Commissioner may wish to make an award consisting of amounts determined by reference to a mathematical formula or by reference to records of the respondents'. The Commissioner is empowered to give directions as to how class members are to establish their entitlement (new s52(5))

Damages for hurt feelings

Compensation awarded under a determination by the Privacy Commissioner for interferences with privacy (as defined in the Act) can now include compensation for ''injury to the complainant's feelings or humiliation suffered by the complainant' (new s52(1A)), in line with the other Acts mentioned above and with the spent convictions provisions of the Crimes Act 1914 (Cth). As discussed above, this will also now apply to representative complaints

Disclosure of credit information to State authorities

The credit reporting provisions of the Privacy Acty 1988 (Pt IIIA) are amended to clarify that, under s18N, a credit provider can disclose relevant personal information to a Minister, Department or authority of a State or Territory whose functions or responsibilities include facilitating the giving of mortgage credit to individuals (or managing such schemes), for the purpose of determining the extent of assistance given (or to manage the scheme). This is intended to cover the various mortgage-assistance schemes operated by State governments

Comment

The ''opt out' provisions for representative complaints are contentious. Mr Williams (Liberal, Tangney) stated that the Opposition did not support this aspect of the amendments because ''unless a member of the class which is covered by the representative complaint withdraws from the action, his or her rights are determined by that action without his or her voice ever having been heard'. He argued that there is a risk that representative actions taken in a new field will fail, leaving other members of the group then unable to take their own separate actions: ''opt-out provisions can result in individual rights being lost without those individuals ever being aware of those rights in the first place' (House of Representatives, Hansard, 14 December 1993, p 3987). There is some substance in this criticism in that there is no requirement that the complainant or the Commissioner make any attempt to inform class members of the existence of the complaint, except a general provision that the Commissioner may at any stage direct that notice of any matter be given to class members s38B(3))

Graham Greenleaf