(1A) Subsection (1) does not apply to a complaint by an individual about an act or practice of an organisation that is bound by an approved privacy code that:
(a) contains a procedure for making and dealing with complaints to an adjudicator in relation to acts or practices that may be an interference with the privacy of an individual; and
(b) is relevant to the act or practice complained of.
(1B) Subsection (1A) does not prevent an individual from making a complaint under an approved privacy code to the adjudicator for the code if the adjudicator is the Commissioner.
(1C) Subsection (1A) does not prevent an individual from complaining under this Part to the Commissioner about an act done, or practice engaged in, by an organisation purportedly for the purpose of meeting (directly or indirectly) an obligation under a Commonwealth contract (whether or not the organisation is a party to the contract).
Note: Section 40A requires an adjudicator for an approved privacy code to refer a code complaint to the Commissioner if the complaint is about an act or practice of a contracted service provider for a Commonwealth contract.
(2) In the case of an act or practice that may be an interference with the privacy of 2 or more individuals, any one of those individuals may make a complaint under subsection (1) on behalf of all of the individuals.
(2A) In the case of a representative complaint, this section has effect subject to section 38.
(3) A complaint shall be in writing.
(4) It is the duty of:
(a) members of the staff of the Commissioner; and
(b) members of the staff of the Ombudsman who have had powers of the Commissioner delegated to them under section 99;
to provide appropriate assistance to a person who wishes to make a complaint and requires assistance to formulate the complaint.
(5) The complaint shall specify the respondent to the complaint.
(6) In the case of a complaint about an act or practice of an agency:
(a) if the agency is an individual or a body corporate, the agency shall be the respondent; and
(b) if the agency is an unincorporated body, the principal executive of the agency shall be the respondent.
(7) In the case of a complaint about an act or practice of an organisation, the organisation is the respondent.
Note: Section 70A contains further rules about how this Part operates in relation to respondent organisations that are not legal persons.
(8) The respondent to a complaint about an act or practice described in one of paragraphs 13(b) to (d) (inclusive), other than an act or practice of an agency or organisation, is the person who engaged in the act or practice.
|
Column
1 Agency |
Column
2 Principal executive |
| 1
|
Department
|
The
Secretary of the Department
|
| 2
|
An
unincorporated body, or a tribunal, referred to in paragraph (c) of the
definition of agency in subsection 6(1)
|
The
chief executive officer of the body or tribunal
|
| 3
|
A
body referred to in paragraph (d) of the definition of agency in
subsection 6(1)
|
The
chief executive officer of the body
|
| 4
|
A
federal court
|
The
registrar or principal registrar of the court or the person occupying an
equivalent office
|
| 5
|
The
Australian Federal Police
|
The
Commissioner of Police
|
| 6
|
An
eligible case manager that is an individual
|
The
individual
|
| 7
|
An
eligible case manager that is not an individual
|
The
individual primarily responsible for the management of the eligible case manager
|
| 8
|
The
nominated AGHS company
|
The
chief executive officer of the company
|
| 9
|
An
eligible hearing service provider that is an individual
|
The
individual
|
| 10
|
An
eligible hearing service provider that is not an individual
|
The
individual primarily responsible for the management of the eligible hearing
service provider
|
(a) the class members have complaints against the same person; and
(b) all the complaints are in respect of, or arise out of, the same, similar or related circumstances; and
(c) all the complaints give rise to a substantial common issue of law or fact.
(2) A representative complaint made under section 36 or accepted under subsection 40(1B) must:
(a) describe or otherwise identify the class members; and
(b) specify the nature of the complaints made on behalf of the class members; and
(c) specify the nature of the relief sought; and
(d) specify the questions of law or fact that are common to the complaints of the class members.
In describing or otherwise identifying the class members, it is not necessary to name them or specify how many there are.
(3) A representative complaint may be lodged without the consent of class members.
(2) The Commissioner may only make such a determination if the Commissioner is satisfied that it is in the interests of justice to do so for any of the following reasons:
(a) the costs that would be incurred if the complaint were to continue as a representative complaint are likely to exceed the costs that would be incurred if each class member lodged a separate complaint;
(b) the representative complaint will not provide an efficient and effective means of dealing with the complaints of the class members;
(c) the complaint was not brought in good faith as a representative complaint;
(d) it is otherwise inappropriate that the complaints be pursued by means of a representative complaint.
(3) If the Commissioner makes such a determination:
(a) the complaint may be continued as a complaint by the complainant on his or her own behalf against the respondent; and
(b) on the application of a person who was a class member for the purposes of the former representative complaint, the Commissioner may join that person as a complainant to the complaint as continued under paragraph (a).
(2) 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.
(3) The Commissioner may at any stage direct that notice of any matter be given to a class member or class members.
(a) the act or practice may be an interference with the privacy of an individual; and
(b) a complaint about the act or practice has been made under section 36.
(1A) The Commissioner must not investigate a complaint if the complainant did not complain to the respondent before making the complaint to the Commissioner under section 36. However, the Commissioner may decide to investigate the complaint if he or she considers that it was not appropriate for the complainant to complain to the respondent.
(1B) The Commissioner must investigate under this Part a complaint about an act or practice of an organisation that is bound by a relevant approved privacy code that contains a procedure for making and dealing with complaints in relation to acts or practices that may be an interference with the privacy of an individual if:
(a) the act or practice occurred after the approval of the code came into effect; and
(b) the adjudicator for the code refers the complaint to the Commissioner; and
(c) the Commissioner accepts the complaint; and
(d) the Commissioner consults the complainant before accepting the complaint.
(1C) If the Commissioner accepts a complaint mentioned in subsection (1B), the Commissioner must deal with it as if it were a complaint made under section 36 in relation to an act or practice of the organisation.
(2) The Commissioner may investigate an act or practice if:
(a) the act or practice may be an interference with the privacy of an individual; and
(b) the Commissioner thinks it is desirable that the act or practice be investigated.
(3) This section has effect subject to section 41.
(a) a complaint is made to an adjudicator for an approved privacy code; and
(b) the adjudicator forms the view that the complaint is about an act done or practice engaged in:
(i) by an organisation that is a contracted service provider for a Commonwealth contract; and
(ii) for the purposes of meeting (directly or indirectly) an obligation under the contract.
(2) Despite the code, the adjudicator must:
(a) stop investigating the complaint under the code (without making a determination under the code about the complaint); and
(b) refer the complaint to the Commissioner under subsection 40(1B) for investigation under this Part.
(3) The Commissioner must accept the complaint under subsection 40(1B).
Note: This means that the Commissioner must investigate the complaint (subject to section 41) as if the complaint had been made to the Commissioner under section 36. See subsections 40(1B) and (1C).
(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.
(4) If an act or practice may be an interference with the privacy of an individual solely because it may breach:
(a) Information Privacy Principle 7; or
(b) National Privacy Principle 6, to the extent that it deals with the correction of personal information; or
(c) a provision of an approved privacy code that corresponds to National Privacy Principle 6, to the extent that it deals with the correction of personal information;
the Commissioner must not investigate the act or practice except to the extent that it is an interference with the privacy of one or more individuals each of whom is:
(d) an Australian citizen; or
(e) a person whose continued presence in Australia is not subject to a limitation as to time imposed by law.
(a) whether the Commissioner has power to investigate the matter to which the complaint relates; or
(b) whether the Commissioner may, in his or her discretion, decide not to investigate the matter;
make inquiries of the respondent.
(1A) Before starting to investigate an act done, or practice engaged in, by a contracted service provider for the purpose of providing (directly or indirectly) a service to an agency under a Commonwealth contract, the Commissioner must also inform the agency that the act or practice is to be investigated.
Note: See subsection 6(9) about provision of services to an agency.
(2) An investigation under this Division shall be conducted in private but otherwise in such manner as the Commissioner thinks fit.
(3) The Commissioner may, for the purposes of an investigation, obtain information from such persons, and make such inquiries, as he or she thinks fit.
(4) Subject to subsection (5), it is not necessary for a complainant or respondent to be afforded an opportunity to appear before the Commissioner in connection with an investigation under this Division.
(5) The Commissioner shall not make a finding under section 52 that is adverse to a complainant or respondent unless the Commissioner has afforded the complainant or respondent an opportunity to appear before the Commissioner and to make submissions, orally, in writing or both, in relation to the matter to which the investigation relates.
(6) Where the Commissioner affords an agency, organisation or person an opportunity to appear before the Commissioner under subsection (5), the agency, organisation or person may, with the approval of the Commissioner, be represented by another person.
(7) Where, in connection with an investigation of a matter under this Division, the Commissioner proposes to afford the complainant or respondent an opportunity to appear before the Commissioner and to make submissions under subsection (5), or proposes to make a requirement of a person under section 44, the Commissioner shall, if he or she has not previously informed the responsible Minister (if any) that the matter is being investigated, inform that Minister accordingly.
(8) The Commissioner may, either before or after the completion of an investigation under this Division, discuss any matter that is relevant to the investigation with a Minister concerned with the matter.
(8A) Subsection (8) does not allow the Commissioner to discuss a matter relevant to an investigation of a breach of an approved privacy code or the National Privacy Principles with a Minister, unless the investigation is of an act done, or practice engaged in:
(a) by a contracted service provider for a Commonwealth contract; and
(b) for the purpose of providing a service to an agency to meet (directly or indirectly) an obligation under the contract.
(9) Where the Commissioner forms the opinion, either before or after completing an investigation under this Division, that there is evidence that an officer of an agency has been guilty of a breach of duty or of misconduct and that the evidence is, in all the circumstances, of sufficient force to justify the Commissioner doing so, the Commissioner shall bring the evidence to the notice of:
(a) an appropriate officer of an agency; or
(b) if the Commissioner thinks that there is no officer of an agency to whose notice the evidence may appropriately be drawn--an appropriate Minister.
(a) to give the information to the Commissioner in writing signed by the person or, in the case of a body corporate, by an officer of the body corporate; or
(b) to produce the document to the Commissioner.
(2) A notice given by the Commissioner under subsection (1) shall state:
(a) the place at which the information or document is to be given or produced to the Commissioner; and
(b) the time at which, or the period within which, the information or document is to be given or produced.
(2A) If documents are produced to the Commissioner in accordance with a requirement under subsection (1), the Commissioner:
(a) may take possession of, and may make copies of, or take extracts from, the documents; and
(b) may retain possession of the documents for any period that is necessary for the purposes of the investigation to which the documents relate; and
(c) during that period must permit a person who would be entitled to inspect any one or more of the documents if they were not in the Commissioner's possession to inspect at all reasonable times any of the documents that the person would be so entitled to inspect.
(3) If the Commissioner has reason to believe that a person has information relevant to an investigation under this Division, the Commissioner may give to the person a written notice requiring the person to attend before the Commissioner at a time and place specified in the notice to answer questions relevant to the investigation.
(4) This section is subject to sections 69 and 70 but it has effect regardless of any other enactment.
(5) A person is not liable to a penalty under the provisions of any other enactment because he or she gives information, produces a document or answers a question when required to do so under this Division.
(2) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the answers the person will give will be true.
(a) the complainant;
(b) the respondent; and
(c) any other person who, in the opinion of the Commissioner, is likely to be able to provide information relevant to the matter to which the complaint relates or whose presence at the conference is, in the opinion of the Commissioner, likely to assist in connection with the performance of the Commissioner's functions in relation to the complaint;
to attend, at a time and place specified in the notice, a conference presided over by the Commissioner.
(2) A person who has been directed to attend a conference and, without reasonable excuse:
(a) fails to attend as required by the direction; or
(b) fails to attend from day to day unless excused, or released from further attendance, by the Commissioner;
is guilty of an offence punishable on conviction:
(c) in the case of an individual--by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months, or both; or
(d) in the case of a body corporate--by a fine not exceeding $5,000.
(3) A person who has been directed under subsection (1) to attend a conference is entitled to be paid by the Commonwealth a reasonable sum for the person's attendance at the conference.
(4) The Commissioner may, in a notice given to a person under subsection (1), require the person to produce such documents at the conference as are specified in the notice.
(2) A conference under this Division shall be held in private and shall be conducted in such manner as the Commissioner thinks fit.
(3) A body of persons, whether corporate or unincorporate, that is directed under section 46 to attend a conference shall be deemed to attend if a member, officer or employee of that body attends on behalf of that body.
(4) Except with the consent of the Commissioner:
(a) an individual is not entitled to be represented at the conference by another person; and
(b) a body of persons, whether corporate or unincorporate, is not entitled to be represented at the conference by a person other than a member, officer or employee of that body.
(2) If the Commissioner decides not to investigate (at all or further) an act done, or practice engaged in, by a contracted service provider for the purpose of providing (directly or indirectly) a service to an agency under a Commonwealth contract, the Commissioner must also inform the agency of the decision.
Note: See subsection 6(9) about provision of services to an agency.
(a) inform the Commissioner of Police or the Director of Public Prosecutions of that opinion;
(b) in the case of an investigation under subsection 40(1), give a copy of the complaint to the Commissioner of Police or the Director of Public Prosecutions, as the case may be; and
(c) subject to subsection (3), discontinue the investigation except to the extent that it concerns matters unconnected with the offence that the Commissioner believes may have been committed.
(2) If, after having been informed of the Commissioner's opinion under paragraph (1)(a), the Commissioner of Police or the Director of Public Prosecutions, as the case may be, decides that the matter will not be, or will no longer be, the subject of proceedings for an offence, he or she shall give a written notice to that effect to the Commissioner.
(3) Upon receiving such a notice the Commissioner may continue the investigation discontinued under paragraph (1)(c).
(4) In subsection (1):
credit reporting offence means:
(a) an offence against subsection 18C(4), 18D(4), 18K(4), 18L(2), 18N(2), 18R(2) or 18S(3) or section 18T; or
(b) an offence against section 6, 7 or 7A, or paragraph 86(1)(a), of the Crimes Act 1914, being an offence that relates to an offence referred to in paragraph (a) of this definition.
tax file number offence means:
(a) an offence against section 8WA or 8WB of the Taxation Administration Act 1953; or
(b) an offence against section 6, 7 or 7A, or paragraph 86(1)(a), of the Crimes Act 1914, being an offence that relates to an offence referred to in paragraph (a) of this definition.
Human Rights and Equal Opportunity Commission includes a person performing functions of that Commission.
Ombudsman means the Commonwealth Ombudsman.
(2) Where, before the Commissioner commences, or after the Commissioner has commenced, to investigate a matter to which a complaint relates, the Commissioner forms the opinion that:
(a) a complaint relating to that matter has been, or could have been, made by the complainant:
(i) to the Human Rights and Equal Opportunity Commission under Division 3 of Part II of the Human Rights and Equal Opportunity Commission Act 1986; or
(ii) to the Ombudsman under the Ombudsman Act 1976; or
(b) an application with respect to that matter has been, or could have been, made by the complainant to the Public Service Commissioner under the Public Service Act 1999;
and that that matter could be more conveniently or effectively dealt with by the Human Rights and Equal Opportunity Commission, the Ombudsman, or the Public Service Commissioner, as the case may be, the Commissioner may decide not to investigate the matter, or not to investigate the matter further, as the case may be, and, if the Commissioner so decides, he or she shall:
(c) transfer the complaint to the Human Rights and Equal Opportunity Commission, the Ombudsman or the Public Service Commissioner;
(d) give notice in writing to the complainant stating that the complaint has been so transferred; and
(e) give to the Human Rights and Equal Opportunity Commission, the Ombudsman or the Public Service Commissioner any information or documents that relate to the complaint and are in the possession, or under the control, of the Commissioner.
(3) A complaint transferred under subsection (2) shall be taken to be:
(a) a complaint made:
(i) to the Human Rights and Equal Opportunity Commission under Division 3 of Part II of the Human Rights and Equal Opportunity Commission Act 1986; or
(ii) to the Ombudsman under the Ombudsman Act 1976; or
(b) an application made to the Public Service Commissioner under the Public Service Act 1999;
as the case requires.
(a) the organisation is a contracted service provider for a Commonwealth contract to provide services to the agency; and
(b) before the Commissioner makes a determination under section 52 in relation to the complaint, the organisation:
(i) dies or ceases to exist; or
(ii) becomes bankrupt or insolvent, commences to be wound up, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of any property for the benefit of creditors.
(2) The Commissioner may amend the complaint to specify as a respondent to the complaint the agency or its principal executive, instead of the organisation.
Note 1: The complaint still relates to the act or practice of the organisation.
Note 2: Section 53B lets the Commissioner treat an agency as a respondent to a determination if the organisation cannot comply with a determination to pay an amount to a complainant.
(3) Before amending the complaint, the Commissioner must:
(a) give the agency a notice stating that the Commissioner proposes to amend the complaint and stating the reasons for the proposal; and
(b) give the agency an opportunity to appear before the Commissioner and to make oral and/or written submissions relating to the proposed amendment.
(4) If the Commissioner amends the complaint after starting to investigate it, the Commissioner is taken to have satisfied subsection 43(1A) in relation to the agency.