FEDERAL COURT OF AUSTRALIA

Hammond v Australian Information Commissioner [2013] FCA 802

THE COURT ORDERS THAT:

1.    The application for judicial review is dismissed.

2.    The applicant pay the respondent’s costs of the application, including all reserved costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant (“Mr Hammond”) has applied for judicial review of the decision of the respondent (“the Commissioner”) not to investigate Mr Hammond’s privacy complaint against the ANZ Banking Group Ltd (“the ANZ”). The decision was made by the Commissioner exercising his power under s 41(1)(a) of the Privacy Act 1988 (Cth) (“the Privacy Act”) to decline to investigate a complaint if he is satisfied that the act or practice complained of did not constitute an interference with the complainant’s privacy. Mr Hammond, who represents himself, claims that he was not afforded procedural fairness in the making of the decision and wants the decision set aside and his complaint investigated by the Commissioner.

2    By court orders made on 2 and 18 April 2013, the application is to be determined on the papers. Each party has filed the evidence and submissions on which they rely but Mr Hammond has applied for an adjournment of the application for a period of 12 months because he has mental health problems and feels incapable of properly presenting his case to the Court.

Should an adjournment of the proceeding be granted?

3    Mr Hammond supported his application for an adjournment with a report from a counselling psychologist, Rosemary Williams, dated 25 June 2013. Ms Williams assessed Mr Hammond as suffering from major depressive disorder. She opined that Mr Hammond currently has a vastly diminished ability to think, concentrate and make decisions, which adversely affects his capacity to represent himself and that he suffers clinically significant distress and impairment in social and cognitive function. She supports a 12 month adjournment of this proceeding to allow Mr Hammond to seek treatment, get well and properly present his case to the Court.

4    Mr Hammond’s present mental health issues are a weighty consideration for the Court in determining whether to grant the adjournment. They are not, however, the only consideration. The overriding consideration for the Court is the interests of justice and there are other factors for the Court to take into account in determining where the interests of justice lie. It is relevant to take into account also that this proceeding is ready to be determined on the papers and that I am satisfied that full opportunity has been provided to Mr Hammond to put his case in writing before the Court.

5    I have carefully reviewed the procedural steps taken in this proceeding. The proceeding was commenced on 3 July 2012 and a statement of claim was filed on 12 July 2012. The Commissioner filed his defence on 3 August 2012. On 18 October 2012, orders were made for the filing of amended pleadings and submissions. In compliance with those orders, Mr Hammond filed an amended statement of claim on 31 October 2012, and the Commissioner filed an amended defence on 14 November 2012. On 19 December 2012, Mr Hammond filed a document that he headed “Applicant’s First Submission”. The Commissioner filed his evidence and submissions in response on 31 January 2013. On 8 February 2013, orders were made for Mr Hammond to file any further submissions, submissions in reply and objections to the Commissioner’s evidence. The time by which those steps were to be taken was extended by consent orders made on 28 February 2013. On 12 March 2013, Mr Hammond filed a document headed “Applicant’s Second Submission” in which he foreshadowed that an affidavit would follow in due course. On 2 April 2013, consent orders were made for the judicial review application to be heard on the papers and for Mr Hammond to file and serve any further submissions by 8 April 2013. That time was extended by orders made on 18 April 2013 as follows:

The Court Orders that:

1.    [The] Time for the applicant to file and serve his submissions, submissions in reply and any evidence [is] extended to 9 May 2013.

2.    The Respondent file and serve any submissions, submissions in reply by 30 May 2013.

3.    No additional grounds of review will be introduced by the Applicant in this proceeding.

4.    No further extensions will be sought by the Applicant in relation to this proceeding.

5.    The matter be heard on the papers.

6.    Costs be reserved.

Mr Hammond filed his third submission on 10 May 2013 and an affidavit in support on 9 May 2013. The Commissioner filed his submissions in reply on 30 May 2013.

6    Mr Hammond seeks the adjournment because he wants the opportunity to respond to the Commissioner’s reply submissions and has additional submissions that he wants to make but feels incapable of doing so because of his current mental health issues. It is relevant for the Court to take into account that the Court ordered, by consent, on 18 April 2013 that no additional grounds of review will be introduced by Mr Hammond in this proceeding and that no further extensions will be sought by him in relation to this proceeding. In his request to the Court for an adjournment, Mr Hammond appears to retract his consent to those orders, submitting that “the Court has the power to release a party from a self-imposed and restrictive consent order if it is in the interests of justice to do so.” Notwithstanding this apparent retraction, I am satisfied that Mr Hammond has been given full opportunity to put his case before the Court and I am not persuaded that good reason has been shown for the Court to depart from those orders and to accede to the adjournment. Some allowance must be made for the fact that Mr Hammond represents himself but, in all the circumstances, I do not consider that any serious injustice to Mr Hammond would result by refusing an adjournment. In my view, the interests of justice lie in the proceeding being determined.

7    The application for an adjournment is refused.

Determination of the judicial review application

(1) The Complaint

8    Mr Hammond made a complaint to the Commissioner on 7 September 2010, exercising his right to complain under s 36 of the Privacy Act. Mr Hammond claimed that the ANZ had interfered with his privacy by accessing his personal email correspondence sent from his work email at the ANZ and provided those emails to ANZ’s internal work cover agent in response to a workers’ compensation claim that Mr Hammond made against ANZ. The Compliance Officer handling the Complaint exercised the right under s 42 of the Privacy Act to make preliminary inquiries of the ANZ in relation to the complaint for the purposes of determining whether to commence a formal investigation. The ANZ, in response to the enquiries made of it, put the submission that the collection, use and disclosure of Mr Hammond’s personal emails was not an interference with his privacy. Following receipt of the ANZ’s submissions, the Compliance Officer wrote to Mr Hammond advising Mr Hammond of her preliminary view that she did not consider that there had been an interference with his privacy, setting out the reasons for her view and providing Mr Hammond with the opportunity to comment before she made a final decision. In his response, which he provided both orally and in writing, Mr Hammond raised a further claim concerning the accuracy of information held by the ANZ. By letter dated 24 October 2011, the Compliance Officer considered the additional matters put forward by Mr Hammond but informed him that she remained of the view that there had not been an interference with his privacy and explained her reasons for maintaining that view. She provided Mr Hammond with a further opportunity to comment before she made a final decision. Mr Hammond again took up that opportunity and provided a detailed written response in which he raised an additional claim of unauthorised access to his emails and that the ANZ did not take reasonable steps to protect his personal information. Following further consideration and taking into account Mr Hammond’s responses, the Compliance Officer was satisfied that the ANZ’s collection, use and disclosure of Mr Hammond’s personal emails was not an interference with his privacy and, pursuant to s 41(1)(a) of the Privacy Act, decided not to investigate the complaint. She invited Mr Hammond to respond to her preliminary view that there was no unauthorised access of his personal emails or non-compliance with the Privacy Act in relation to the ANZ’s IT Use policy.

9    On 31 January 2012, Mr Hammond sent an email to the Compliance Officer referring to two case notes from the Commissioner that he considered had some significant parallels to his case. He followed up this email with further emails raising other matters for the consideration of the Commissioner. The Compliance Officer responded by letter dated 12 March 2012, advising of her decision to decline to investigate these other aspects of Mr Hammond’s complaint on the ground that there had not been an interference with his privacy and advising Mr Hammond of his appeal rights. Mr Hammond responded by providing more information to the Compliance Officer. By letter dated 20 April 2012, the Compliance Officer advised Mr Hammond that the further additional information had been taken into account but that the Compliance Officer still declined to investigate Mr Hammond’s complaint on the ground that there had not been an interference of Mr Hammond’s privacy. She advised Mr Hammond that the file on his complaint had been closed and outlined his appeal rights.

10    Mr Hammond then wrote to the Director of Compliance to request a review of his case and included further additional information concerning his claim that the ANZ had interfered with his privacy. An internal review was conducted by the Director of Compliance who affirmed the decision of the Compliance Officer to decline to investigate the complaint. On 6 June 2012, the Assistant Commissioner, Compliance wrote to Mr Hammond advising of the result of the internal review and stating that he had considered the advice and observations of the Director of Compliance and accepted the decision of the Compliance Officer to decline to investigate Mr Hammond’s complaint. Mr Hammond was again advised of his appeal rights. Additional reasons were provided to Mr Hammond on 21 August 2012.

(2) The application for judicial review

11    On 3 July 2012, Mr Hammond commenced this proceeding in exercise of his appeal rights. His application as initially filed challenged the view of the Director of Compliance that the two case notes to which Mr Hammond had referred the Compliance Officer in January 2012 were not relevant to Mr Hammond’s case. The Director of Compliance’s findings on the internal review that he conducted included the following:

Mr Hammond has asked me to review two case notes. I have reviewed them but I do not consider them relevant to his case because the context is entirely different and they are applying the public sector principles not the [National Privacy Principles].

12    Mr Hammond claimed to be aggrieved by the Commissioner’s “refusal” to consider the two cited cases and claimed that the “refusal” was an exercise of discretionary power in accordance with a rule or policy without regard to the merits of his case: s 5(2)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”); and/or constitute failure to take into account relevant facts in the decision to close his file: s 5(2)(b) of the ADJR Act.

13    On 27 July 2012, two officers of the Commissioner met with Mr Hammond. Following a request from Mr Hammond for further reasons explaining why the Commissioner had not applied his reasoning in those case notes to his matter and also about another matter that he raised, the Assistant Commissioner provided Mr Hammond with additional reasons by letter dated 21 August 2012.

14    Mr Hammond filed an amended statement of claim on 31 October 2012 alleging that the Commissioner failed to accord him procedural fairness in the review undertaken of the decision to decline to investigate his complaint because the officer who conducted the review failed to consider any of the new arguments, evidence and case law that Mr Hammond had presented in his request for a review and had effectively admitted that the outcome of the review had been pre-judged. Mr Hammond sought an order to set aside the decision of 6 June 2012 and an order that in looking at the matter afresh, the Commissioner “shall, to ensure an open mind, have no prior knowledge of the case prior to meeting [Mr Hammond] face to face”.

15    The Commissioner filed an amended defence in which he denied failing to take account of the arguments, evidence and case law presented by Mr Hammond in his request for review and denied that he had pre-judged the outcome of the review or failed to accord Mr Hammond procedural fairness.

16    In consequence of the evidence filed by the Commissioner in this proceeding, Mr Hammond by his second submission raised a new ground in support of his claim that he was denied procedural fairness. The Commissioner’s evidence included the response of 20 May 2011 that the ANZ had provided to the Commissioner’s delegate in relation to the initial inquiries made by the Commissioner upon receipt of Mr Hammond’s complaint. That letter contained certain comments about Mr Hammond’s conduct. Specifically, the letter stated:

Mr Hammond’s propensity to claim, withdraw, and then claim again, causes us to doubt the legitimacy of his latest privacy complaint. It appears, having been unsuccessful in [Fair Work Australia] and having exhausted all other avenues…. Mr Hammond is now attempting to start the process again.

17    Mr Hammond alleged that “this adverse information is credible, relevant and significant to the decision to be made [by the Commissioner]”. Mr Hammond alleged that “the content of procedural fairness required that the adverse information be put to [him] at the time. It was not” and that “the Commissioner’s failure to put the adverse information to [him] at the appropriate time undermined the fairness of the complaint handling process from the outset” and “resulted in [his] privacy complaint being assessed in an atmosphere of antipathy that caused [him] anxiety and ultimately led to [his] admission to a psychiatric facility on the evening of 6 June 2012, several hours after receiving the Commissioner’s final decision to close [his] privacy complaint”.

18    In his third submission, Mr Hammond withdrew his first and second submissions “to enable the Court to focus on the matters outlined in [the third] submission”. Mr Hammond claimed in his third submission that he was denied procedural fairness in relation to the decision of the Commissioner not to investigate his complaint by reason that he was not given opportunity to present evidence to the Commissioner to satisfy the Commissioner that he had suffered “loss of dignity” resulting from the use of his personal information by the ANZ. He also alleged that he was misled by the Commissioner that the loss of dignity that he suffered by reason of the use of his personal information was an irrelevant consideration and accordingly that he had not put before the Commissioner his counselling records to demonstrate that the loss of dignity that he had suffered was genuine and significant enough to open an investigation. He also alleged subconscious bias on the part of the Compliance Officer.

(3) Decision

19    In my opinion, there is no merit in the claims made by Mr Hammond. I have taken the view that the application for judicial review of the “6 June 2012 decision” should be taken as an application to review each of the decisions of the Commissioner under s 41(1)(a) of the Privacy Act not to investigate Mr Hammond’s complaint. The internal review finding that those decisions were appropriate is neither a reviewable decision nor reviewable conduct for the purposes of the ADJR Act. I shall nonetheless, for the sake of completeness, examine the merits of Mr Hammond’s claims about the denial of procedural fairness in relation to the review that was undertaken.

20    The National Privacy Principles (NPPs) contained in Schedule 3 of the Privacy Act regulate the way certain organisations are to handle personal information. The NPPs cover the collection, use, disclosure and storage of personal information. The NPPs generally apply to private sector organisations with an annual turnover of $3 million or more. NPP 2 regulates the use and disclosure of personal information by organisations. NPP 2.1 provides that:

An organisation must not use or disclose personal information about an individual for a purpose (the secondary purpose) other than the primary purpose of collection unless:

…

(b) the individual has consented to the use or disclosure; or

…

(g) the use or disclosure is required or authorised by or under law; or

…

21    Mr Hammond contended that a loss of dignity is a relevant consideration for the “purpose test” of NPP 2 that is derived from the preamble to the Privacy Act, which expresses that the legislation was intended to implement Australia’s obligations relating to privacy under the International Covenant on Civil and Political Rights (“the Covenant”) and the Organisation for Economic Cooperation and Development Guidelines on the Protection of Privacy and Transborder Flows of Personal Data. The preamble of the Covenant sets out that the States parties to the covenant:

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Recognising that these rights derive from the inherent dignity of the human person,

….

Agree upon the following articles…” (emphasis added).

22    Mr Hammond imputed from the wording of the preamble to the Covenant that the purpose or object of the Privacy Act is the protection of human dignity and to prevent harm to individuals through the handling of their personal information. The logic was that that the “purpose test” of NPP 2, therefore, involves the question of whether or not harm may be caused by the use of personal information. The starting point, however, is not the preamble to the Covenant, but the text of the Privacy Act.

23    The Privacy Act applies to “acts and practices” engaged in by agencies or organisations. The Act includes a range of exemptions for particular acts and practices, some of which are included in the NPPs. NPP 2 contains the principles relating to use and disclosure. The use and disclosure of personal information for the primary purpose for which is was collected is permissible. NPP 2.1 also allows the use or disclosure of personal information if an individual has consented to that use or disclosure or the use or disclosure is required or authorised by or under law. The Commissioner’s decision not to investigate Mr Hammond’s complaint was based, in part, upon reaching the view that the ANZ’s use and disclosure of Mr Hammond’s personal emails was permitted by these exemptions in NPP 2. I can discern no legal error in the reasoning of the Commissioner. The applicability of the exemptions does not depend on whether or not the use or disclosure may cause loss of dignity to the individual. The preamble to the Covenant does not control the clear expression of the exemptions in NPP 2. There is no requirement to take into account any possible subjective feelings of the individual prior to using or disclosing personal information by an organisation in the circumstances permitted by NPP 2 and the fact that Mr Hammond felt aggrieved that he had suffered a loss of dignity was not a factor that is relevant to considering whether there had been a breach of the NPPs.

24    Accordingly, procedural fairness was not denied to Mr Hammond because he was not afforded an opportunity to put before the Commissioner evidence to show loss of dignity. Any loss of dignity suffered by Mr Hammond as a result of ANZ’s use or disclosure of his personal emails was irrelevant to whether the ANZ had interfered with his privacy rights. Nor is there any substance in the contention that Mr Hammond was misled about the material that should have put forward for consideration. Rather, Mr Hammond was provided with proper opportunity to put before the Commissioner all the matters upon which he relied in support of his contention that the Commissioner should investigate his complaint. The evidence showed that the Commissioner put before Mr Hammond the substance of the matters that might bear upon the decision whether to investigate his privacy complaint and gave Mr Hammond reasonable opportunity to place before the Commissioner any submissions and material that he wished to advance in support of his complaint. This was done on numerous occasions. In fact, the Commissioner reconsidered his decision on two separate occasions: an internal review conducted in June 2012 and the additional reasons provided on 21 August 2012.

25    There is no substance to the complaint that the Commissioner did not take into account Mr Hammond’s submissions and material. The detailed reasons provided by the Compliance Officer to Mr Hammond in each of her letters advising of her preliminary views and of her final decision and the letters from the Director of Compliance detailing the findings from the internal review and his consideration of the additional reasons bear out that all relevant matters were taken into account and properly considered.

26    The claim that the Compliance Officer was biased is also without substance. There is nothing in the material to support the contention that the Compliance Officer was subconsciously influenced by ANZ’s allegations about Mr Hammond’s conduct which caused her to pre-judge the decision not to investigate the complaint.

27    Finally, there is no substance to Mr Hammond’s allegation that the Director of Compliance pre-judged the outcome of the internal review. The evidence before the Court shows that the Director of Compliance gave careful consideration to Mr Hammond’s complaint and provided him with sufficient explanation for affirming the decision of the Compliance Officer.

orders

28    Accordingly I make the following orders:

1.    The application for judicial review is dismissed.

2.    The applicant pay the respondent’s costs of the application, including all reserved costs.

Associate:

Dated:    12 August 2013