FEDERAL COURT OF AUSTRALIA

Ogawa v Australian Information Commissioner [2015] FCA 152

THE COURT ORDERS THAT:

1.    The following decisions of the Australian Information Commissioner be set aside:

(a)    the decision dated 18 February 2011 declining to investigate the applicant’s complaint of a breach of privacy against Dr Michele Calvird under s 41(1) of the Privacy Act 1988 (Cth); and

(b)    the decision dated 8 April 2011 affirming the decision of 18 February 2011.

2.    The application is otherwise dismissed.

3.    The parties file written submissions as to costs within 14 days of the date of this order.

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

REASONS FOR JUDGMENT

1    In this proceeding the applicant, Dr Ogawa, seeks review of four decisions of delegates of the Australian Information Commissioner (the “Commissioner”) made under provisions of the Privacy Act 1988 (Cth) (the “Act”). Dr Ogawa seeks review of the decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “AD(JR) Act”) and in the exercise of this Court’s review jurisdiction under s 39B of the Judiciary Act 1903 (Cth) (the “Judiciary Act”) for the grant of writs on the footing of jurisdictional error on the part of the Commissioner in the purported exercise of powers under the Act.

2    The four decisions in respect of which Dr Ogawa seeks review are these.

3    First, a decision dated 18 February 2011 declining to investigate Dr Ogawa’s complaint of a breach of privacy against Dr Michele Calvird under s 41(1)(a) of the Act, on the basis that Dr Calvird was not in breach of the Act (the “first decision”).

4    Second, a decision dated 8 April 2011 affirming the decision of 18 February 2011, following an internal review process (the “second decision”).

5    Third, a decision dated 29 May 2013 declining to investigate Dr Ogawa’s complaint of a breach of privacy against the Toowong Private Hospital (the “TPH”), under s 41(1)(a) of the Act, on the basis that the TPH was not in breach of the Act (the “third decision”).

6    Fourth, a decision dated 14 June 2013 declining to investigate Dr Ogawa’s complaint of a breach of privacy against the Commonwealth Director of Public Prosecutions (the “CDPP”), pursuant to s 41(1)(c), on the basis that it had been more than 12 months since the alleged interference with Dr Ogawa’s privacy (the “fourth decision”).

7    I have set out aspects of the procedural history of this matter in Ogawa v Australian Information Commissioner [2013] FCA 866 and in Ogawa v Australian Information Commissioner [2014] FCA 229.

8    Dr Ogawa’s originating application was filed on 26 June 2013. So far as it related to relief under the AD(JR) Act, the application was filed out of time in relation to the decisions of 18 February 2011 and 8 April 2011.

9    On 13 March 2014, I granted Dr Ogawa an extension of time for the filing of the originating application in respect of the four decisions the subject of the application up to and including the date of filing of the originating application. I also granted the first respondent leave to withdraw a notice of objection to competency which it had filed, and I dismissed a series of interlocutory applications filed by Dr Ogawa and by the first respondent.

10    For the reasons set out in Ogawa v Australian Information Commissioner [2014] FCA 229 (including especially the fact that Dr Ogawa might not have been able, due to her health, to appear personally in the proceedings at any stage), I ordered that Dr Ogawa’s originating application proceed and be heard and determined on the papers. I made directions for the filing of submissions in chief, response and reply by Dr Ogawa and the Commissioner.

Factual background

11    Dr Ogawa was charged in the District Court of Queensland with particular Commonwealth criminal offences in respect of conduct in April and May 2006. On 13 November 2008, Dr Ogawa was granted bail in relation to the charges. The bail undertakings she gave included undertakings in relation to psychiatric treatment to be undertaken by her.

12    The undertakings relevant to the current proceeding were in these terms:

5.    On 18/12/2008 I shall attend the clinic of Dr Calvird, at Toowong Private Hospital, for assessment and

i)    thereafter take all medication and undertake all treatment prescribed or recommended by Dr Calvird;

ii)     thereafter attend all further appointments for treatment by Dr Calvird.

…

7.    I shall provide a written authorisation for [Dr Calvird and other named health professionals] to notify the Commonwealth Director of Public Prosecutions of any failure by her [sic: me] to comply with the obligations in paragraph 4, 5 & 6 above.

                                [emphasis added]

13    On 13 November 2008, Dr Ogawa signed an authority directed to Dr Calvird in these terms:

I hereby authorise Doctor Calvird to notify the Commonwealth Director of Public Prosecutions of any failure by me to comply with the following obligations:

(a)    On 18 December 2008, attend the clinic of Dr Calvird, at Toowong Private Hospital for assessment;

(b)    thereafter take all medication and undertake all treatment prescribed or recommended by Dr Calvird;

(c)     thereafter attend all further appointments for treatment by Dr Calvird.

                                    [emphasis added]

14    On 20 February 2009, Ms Roberta Devereaux, the solicitor employed by the CDPP with carriage of the District Court criminal proceedings against Dr Ogawa, swore an affidavit which was filed in those proceedings. A copy of the affidavit was served on Dr Ogawa by email the same day. In her affidavit, Ms Devereaux said this:

5.    On the 5 February 2009 I received a telephone call from Dr Calvird, she told me and I verily believe the following:

a)    Dr Calvird asked me if Ms Ogawa had been remanded in custody. She said that Ms Ogawa had cancelled her last appointment on the 29 January as she had court and had not made another one. Dr Calvird said that she was conscious of the bail condition and wanted to know if the reason that she had not heard from her was because she was in custody. I told Dr Calvird that Ms Ogawa had not been remanded in custody.

b)    Dr Calvird said that she would chase Ms Ogawa up and check if she was going to continue treatment.

6.    On 10 February I telephoned Dr Calvird, she told me and I verily believe the following:

a)    I asked if she had made contact with the Ms Ogawa. She advised that she would check on Thursday if she had received any emails from Ms Ogawa and let me know if she did not make another appointment.

b)    Dr Calvird said that she was aware that Ms Ogawa was moving to Lismore and that she would be reducing the frequency of her appointments and that she would let me know what was happening.

7.    On 16 February I received a telephone message from Dr Calvird, she advised that Ms Ogawa had not rebooked an appointment with her and that she intended to email Ms Ogawa.

8.    On 17 February I telephoned Dr Calvird and she told me and I verily believe the following:

a)    an email had been sent yesterday and that no response had been received;

b)    Ms Ogawa has a mobile phone on which you cannot record messages;

c)    the last time she had seen Ms Ogawa was on 22 January 2009.

15    Dr Ogawa was concerned that the Ms Devereaux’s affidavit would be used in a possible breach of bail hearing. Dr Ogawa’s position was that the affidavit was incorrect, because she had not in fact received any email from Dr Calvird on 16 February.

16    On 23 February 2009, Dr Ogawa sent by email to Dr Calvird a subpoena issued in the District Court of Queensland, requiring Dr Calvird to attend the District Court at Brisbane on a particular date “to give evidence and produce to the court for all emails that you sent to Dr Megumi Ogawa”.

17    There followed a series of correspondence between Dr Ogawa and Dr Calvird’s legal representatives. In a letter to Dr Ogawa on 25 February 2009, Dr Calvird’s solicitor said this:

In response to your complaint, my client advises me that the secretarial staff at Toowong Specialist Centre drafted an e-mail to you, on Dr Calvird’s behalf, during the early afternoon of Monday 16 February 2009. The staff member believed the e-mail was successfully sent to you, however it was only discovered the following day that it had not been transmitted. Dr Calvird was unaware of this when she informed Ms Devereaux of the Commonwealth Director of Public Prosecutions (“CDPP”), that she had not received a response from you.

My client has now sent a letter to Ms Devereaux explaining the situation and specifically that you promptly replied to the e-mail once it was resent to you.

18    The solicitor’s letter to Dr Ogawa enclosed Dr Calvird’s letter to Ms Devereaux dated 23 February 2009. Dr Calvird’s letter was, relevantly, in these terms:

Further to our discussion on February 17th, I would like to advise you that Ms Ogawa has responded to the email sent to her by my staff member. Ms Ogawa advised that she has had a psychiatrist arranged by NSW Health to see her. Ms Ogawa asked in her email if she could keep the possibility of making an appointment with me open at this stage.

Secondly, I have been asked by Ms Ogawa to clarify some details. My staff member drafted an email to Ms Ogawa, on Monday February 16th. The staff member, to the best of her knowledge, thought that the email had been successfully sent through to Ms Ogawa. However, due to a problem with her computer, she was made aware only the following day that the email had not been sent though [sic]. At this stage, she resent the email to Ms Ogawa, and Ms Ogawa promptly replied. The content of this email has already been discussed in the first paragraph. When I spoke to you on Tuesday February 17th, I then said that I would check with my staff as to whether a response to the email had been received from Ms Ogawa. The staff checked, and there was no response, as the email from the Monday had not gone through. However, we were not aware of that at that point. Hence, I gave you the information that Ms Ogawa had not responded to the email, whereas unbeknown to us, Ms Ogawa had not received the email.

Ms Ogawa has not made another appointment at this stage.

19    The secretarial “staff member” referred to in this letter was Ms Chatel Gordge.

20    After a further series of email exchanges, Dr Calvird’s solicitor wrote to Dr Ogawa on 4 March 2009 enclosing a letter from Dr Calvird to Dr Ogawa dated 2 March 2009, in which Dr Calvird informed Dr Ogawa that Dr Calvird had, in the circumstances, terminated their doctor/patient relationship.

21    More than three years later, on 11 October 2012, Dr Ogawa wrote to the Chief Executive Officer of the TPH, making a “complaint against your hospital about the conduct of Dr Michele Calvird and Ms Chatel Gordge”, and seeking an apology. The TPH replied in a letter dated 17 October 2012 in this way:

I understand from your email that you were a patient of Dr Michele Clavird [sic] between 18th December 2008 and February 2009. Our records indicate that you were not a patient of the actual Hospital during this time. It is therefore assumed that you were an outpatient of Dr Calvert [sic] who you visited at the Toowong Specialist Centre. The Toowong Specialist Centre was located in one of the wings of the Hospital during 2008 and 2009. However, the Specialist Centre was not part of the Hospital but instead leased space from the Hospital. Further, the Toowong Specialist Centre closed in June 2012. As such, I am unable to progress an investigation into the matter that you raised. Nor can I speak on behalf of the Specialist Centre and offer you an apology.

The Legislative Scheme

22    The Act regulates the way certain “organisations” are to handle personal information. An individual who is not a small business operator is an “organisation” to which the Act applies: s 6C. One circumstance in which an individual is defined not to be a “small business operator” is where he or she provides a health service to another individual and holds any health information except in an employee record: s 6D(4)(b). “Health information” means information or an opinion, which is personal information, about the health or a disability (at any time) of an individual, about an individual’s expressed wishes regarding the future provision of health services to him or her, or about a health service provided, or to be provided, to an individual. The term “health information” also includes other personal information collected “to provide, or in providing, a health service”: s 6. “Personal information” means “information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion”: s 6.

23    It is uncontroversial in this proceeding that Dr Calvird was providing a health service to Dr Ogawa and held health information of Dr Ogawa, and was therefore an organisation regulated by the principles contained in the Act.

24    An act or practice of an organisation is an “interference with the privacy of an individual” if the act or practice “breaches” a National Privacy Principle in relation to personal information that relates to the individual: s 13A(1)(b). An act or practice is said to “breach” a National Privacy Principle “if, and only if, it is contrary to, or inconsistent with, that National Privacy Principle”: s 6A. Section 16B, however, provides that the Act (with some exceptions) applies to the collection of personal information by an organisation only if the information is collected for inclusion in a record or a generally available publication, and applies to personal information that has been collected by an organisation only if the information is held by the organisation in a record.

25    The National Privacy Principles are contained in Sch 3 to the Act: s 6. The National Privacy Principles in cl 2 of Sch 3 (“NPP2”) and cl 3 of Sch 3 (“NPP3”) are these:

2 Use and disclosure

2.1     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:

(a)     both of the following apply:

(i)     the secondary purpose is related to the primary purpose of collection and, if the personal information is sensitive information, directly related to the primary purpose of collection;

(ii)     the individual would reasonably expect the organisation to use or disclose the information for the secondary purpose; or

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

…

Note 1:    It is not intended to deter organisations from lawfully co-operating with agencies performing law enforcement functions in the performance of their functions.

Note 2:    Subclause 2.1 does not override any existing legal obligations not to disclose personal information. Nothing in subclause 2.1 requires an organisation to disclose personal information; an organisation is always entitled not to disclose personal information in the absence of a legal obligation to disclose it.

…

3 Data quality

An organisation must take reasonable steps to make sure that the personal information it collects, uses or discloses is accurate, complete and up-to-date.

26    Section 36(1) of the Act provides that an individual may complain to the Commissioner about an act or practice that may be an interference with the privacy of the individual. Section 40(1) provides that, subject to some exceptions not presently relevant, “the Commissioner shall investigate an act or practice” [emphasis added] if the act or practice “may be an interference” with the privacy of an individual and a complaint about the act or practice has been made under s 36.

27    Section 41(1), however, relevantly provides that the Commissioner “may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made under s 36 … if the Commissioner is satisfied that” [emphasis added]:

(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;

…

28    The scheme of the Act therefore is that the Commissioner is obliged to investigate a complaint made in accordance with s 36, unless the Commissioner reaches a state of satisfaction as to either the s 41(1)(a) matter or the s 41(1)(c) matter, relevantly for present purposes. I will return later in these reasons to nature of the administrative discretion in s 41(1) and the effect of the conjunction of s 41(1) with the National Privacy Principles.

Dr Ogawa’s complaints and the Commissioner’s decisions

The complaint against Dr Calvird

29    On 2 December 2010, Dr Ogawa wrote to the Commissioner alleging that Dr Calvird had interfered with her privacy. The Commissioner treated Dr Ogawa’s letter as a complaint under s 36 of the Act. Unfortunately, that letter is not in evidence in this proceeding.

30    From the Commissioner’s later response, it seems that in her complaint, Dr Ogawa alleged that Dr Calvird had interfered with her privacy in two ways: first, by improperly disclosing her personal information to the CDPP (because particular aspects of the disclosure were not authorised by the written authorisation which Dr Ogawa had given); and second, by disclosing information about her which was false.

31    On 16 December 2010, the Commissioner’s delegate wrote to Dr Ogawa expressing an intention to decline to investigate Dr Ogawa’s complaint under s 41(1)(a), but inviting Dr Ogawa to provide a response to the letter “before we make a final decision”. The Commissioner’s view expressed in the letter of 16 December 2010 was this:

On 13 November 2008, you signed a Bail Undertaking further to which you provided a signed authority directed to Dr Calvird to notify the CDPP of any failure by you to attend appointments or undertake all prescribed medication and treatment.

Therefore, on the evidence provided, I consider you consented to the alleged disclosure and that it was in accordance with NPP 2.1(b).

Your allegation of the disclosure of false personal information about you appears to have been made in a telephone conversation by Dr Calvird. While it is not clear the alleged disclosure was “in a record” as required under Section 16B of the Act, there is also insufficient evidence that the information is false. As such, it appears that Dr Calvird has complied with NPP 3 in this instance.

32    Dr Ogawa responded to the Commissioner. On 18 February 2011, the Commissioner’s delegate wrote again to Dr Ogawa. After summarising the contentions which the delegate understood to have been advanced by Dr Ogawa – that the Commissioner had taken into account an irrelevant consideration in taking into account Dr Calvird’s disclosure of Dr Ogawa’s cancelled appointment on 29 January 2009, and had failed to take into account relevant considerations being particular disclosures made by Dr Calvird to the CDPP – the delegate said this:

We note your views. However our view remains unchanged. We consider that when you cancelled your appointment on 29 January 2009, Dr Calvird was, from that point, authorised to inform the CDPP in accordance with your bail conditions. We consider that subsequent disclosures by Dr Calvird to the CDPP are also made in the context of reporting under your bail conditions.

…

Therefore, for the reasons set out in my previous letter [i.e. the letter of 16 December 2010], I have decided under section 41(1)(a) of the Act to decline to investigate the complaint on the grounds that Dr Calvird has not breached the Act. My file is now closed.

                                [emphasis added]

33    That decision is the first decision in respect of which Dr Ogawa now seeks review.

34    On 18 February 2011, Dr Ogawa applied to the Commissioner to undertake an internal review of the first decision. On 8 April 2011, Mr Mark Hummerston, Assistant Commissioner, Compliance, wrote to Dr Ogawa saying that, following her request for an internal review, he had had the opportunity to examine the file and consider the information she had provided. The letter informed Dr Ogawa that, having reviewed the file, Mr Hummerston considered that the Commissioner’s decision was correct and that there was no basis for changing that decision. He then said this:

As we explained previously, when you cancelled your appointment on 29 January 2009, Dr Calvird was authorised to inform the CDPP in accordance with your bail conditions. Similarly, subsequent disclosures by Dr Calvird to the CDPP were also made in the context of reporting in accordance with your bail conditions.

35    That decision is the second decision in respect of which Dr Ogawa now seeks review.

The complaint against the TPH

36    On 25 October 2012, Dr Ogawa wrote to the Commissioner alleging that the TPH had interfered with her privacy. The Commissioner treated Dr Ogawa’s letter as a complaint under s 36 of the Act. Again, that letters is unfortunately not in evidence in this proceeding.

37    It is apparent from the later correspondence that Dr Ogawa’s allegation was that the TPH had interfered with her privacy in relation to the disclosure of her personal information by Dr Calvird and Ms Gordge. Dr Ogawa claimed that the TPH was responsible for the conduct of Dr Calvird and Ms Gordge in disclosing her personal information to the CDPP.

38    On 5 November 2012, the Commissioner’s delegate wrote to Dr Ogawa expressing an intention to decline to investigate Dr Ogawa’s complaint under s 41(1)(a), but inviting Dr Ogawa to provide a response to the letter “before we make a final decision”. The Commissioner’s view expressed in the delegate’s letter was this:

TPH has examined its records for the period 18 December 2008 to February 2009 when you were seeing Dr Calvird. TPH states its records do not indicate you were a patient of TPH during that time.

I note TPH explained to you, in its letter dated 17 October 2012, that the Toowong Specialist Centre was merely leasing space from TPH. The Toowong Specialist Centre did not form part of TPH, and Dr Calvird and Ms Gordge were not working for TPH. Therefore, there is no act or practice by TPH, in this instance, that would constitute an interference of privacy.

In addition, I note that in relation to your complaint against Dr Calvird, the [Commissioner] has previously found the disclosure by Dr Calvird was authorised by law, and was not a breach of the Act.

Other matters

Please note that your complaint against Dr Calvird is closed and the OAIC will not be pursuing that matter any further.

Next steps

On the available information it appears that TPH has met the requirements of the Act. Consequently, we intend to decline to investigate your complaint under s 41(1)(a) …

39    Dr Ogawa responded to the Commissioner. On 18 February 2013, the Commissioner’s delegate wrote again to Dr Ogawa addressing the issues raised in Dr Ogawa’s response to the first letter, and giving Dr Ogawa a further opportunity to comment before the Commissioner made a final decision. In the letter of 18 February 2013, the delegate referred to s 8(1)(a) of the Act regarding the acts and practices done by employees or agents, and concluded that he was “satisfied that Dr Calvird was not an employee of, or in the service of, [the TPH]”. The delegate also noted that, in any case, the Commissioner had previously determined that Dr Calvird did not interfere with Dr Ogawa’s privacy, and that that complaint remained closed.

40    In respect of Ms Gordge, however, the delegate considered that the actions of Ms Gordge, in performing duties at the direction of Dr Calvird, “can be considered the actions of the TPH as defined in s 8(1)(a) of the Act” [emphasis added]. The delegate therefore went on to consider whether the TPH had interfered with Dr Ogawa’s privacy under the Act in respect of the disclosure made by Ms Gordge to Dr Calvird. In relation to the alleged breach of NPP2, the delegate said this:

It appears TPH collected your personal information from Dr Calvird for the purpose of providing administrative support to Dr Calvird at the Toowong Specialist Centre (TSC). In this particular instance, the purpose of collection was to email you to schedule a treatment appointment in accordance with your bail conditions. TPH subsequently used your personal information to email the appointment to you. Therefore, I consider TPH has satisfied the requirements of NPP 2.1(a) as it used your personal information for the primary purpose of collection.

TPH also disclosed your personal information to Dr Calvird to confirm whether the emailed appointment had been sent to you and whether you had responded. I consider this disclosure was directly related to the primary purpose of emailing you to schedule an appointment as it was confirming that action had been completed. I am also of the view that you would reasonably expect such a disclosure as it is normal administrative process for support staff to advise whether they had carried out their tasks.

Therefore, I consider that TPH’s use/disclosure of your personal information meets the requirements of NPP 2.1(a) and is permitted under the Act.

41    In relation to the alleged breach of NPP3, the delegate noted that NPP3 requires organisations to take “reasonable steps” to make sure the information it collects, uses or discloses is accurate, complete and up-to-date and that what are reasonable steps will depend on the organisation’s particular circumstances. In some circumstances, the delegate said, “reasonable steps may mean taking no steps at all”. The delegate went on to summarise the information before him and then formed a view that the TPH had not interfered with Dr Ogawa’s privacy:

From the available information, it appears that TPH/Ms Gordge incorrectly advised Dr Calvird that an email appointment had been sent to you on 16 February 2009.

Dr Calvird subsequently advised the CDPP on 17 February 2009, that you had not responded to the email.

When Ms Gordge (TPH) found out the email had not transmitted successfully, she resent it to you on 17 February 2009 and received your prompt response. She advised Dr Calvird, who subsequently wrote to the CDPP and explained the situation.

On the available information, it appears that TPH provided incorrect information about you, to Dr Calvird, because of a one off mistake or error. When TPH became aware that an error had occurred, it took reasonable steps to correct the information as soon as practicable.

It is possible for a one-off error to occur but for an organisation to still meet the requirements of NPP 3.

Notwithstanding the possibility of human error, I do not consider it reasonable for TPH to carry out proactive checks to ensure that every email, sent at the direction of Dr Calvird, was actually sent. I consider it reasonable for TPH to assume that emails would be sent in the normal course. When asked by Dr Calvird whether she had sent the email, it was satisfactory for Ms Gordge to rely on her own memory of sending the email. It was not necessary for her to check whether the email had transmitted. I consider that, in the circumstances of this matter, reasonable steps amounted to TPH taking no steps and that, in this instance, TPH has met the requirements in NPP 3 of the Act.

42    As I have said, the delegate’s letter of 18 February 2013 gave Dr Ogawa a further opportunity to comment before the Commissioner made a final decision. In a subsequent series of emails to the delegate between 26 February 2013 and 4 March 2013, Dr Ogawa raised six matters, which she styled as “questions”. As her grounds of appeal raise particular issues in relation to these questions, it is necessary to describe them here.

43    First, Dr Ogawa asked if the delegate had “any case in mind” (by which she presumably meant an authority) which supported the delegate’s proposition in the letter of 18 February 2013 that (as Dr Ogawa put it) “taking reasonable steps means sometimes taking no steps”.

44    Second, having referred to the delegate’s letter of 16 December 2010 (described at [31] of these reasons), Dr Ogawa said this:

Obviously the alleged disclosure was not something I consented to disclose and therefore you relied upon NPP2.1(b), the secondary purpose disclosure.

My question is whether there is any other case in which NPP 2.1(b) was decided to override the other statutory obligation of non-disclosure. I am particularly interested in whether there is a case in which a doctor was determined not to be liable for a breach of the confidentiality because the doctor’s disclosure was deemed to be the secondary purpose disclosure.

45    Third, having referred to the delegate’s statement in the letter of 18 February 2011 (described at [32] of these reasons) that from 29 January 2009, Dr Calvird was “authorised to inform the CDPP in accordance with [her] bail conditions”, Dr Ogawa asked what was meant by that statement, that is, “what was Dr Calvird authorised to inform of to the CDPP [sic]?”.

46    Fourth, Dr Ogawa again referred to the delegate’s letter of 18 February 2011 and, in particular, the statement in it that the Commissioner considered that “subsequent disclosures by Dr Calvird to the CDPP are also made in the context of reporting under your bail conditions”. Dr Ogawa asked whether that meant that in the Commissioner’s opinion, the subsequent disclosure by Dr Calvird was not regulated by the National Privacy Principles of the Act, and if not, then which National Privacy Principle “authorises unauthorised disclosures of personal information” in the context of reporting under her bail conditions.

47    Fifth, Dr Ogawa asked whether the delegate was aware of the effect of particular provisions of the “Bail Act”.

48    Sixth, Dr Ogawa referred to the delegate’s proposition that the reasonable steps required by NPP3 may mean taking no steps at all. She returned again to her initial query regarding whether the Commissioner had any authority to support that proposition, and said this:

My next question is whether or not, in those cases you had in mind, the adverse effect of the date being inaccurate and the degree of intrusiveness if the organisation to verify the individual’s personal information were considered. These two points are explained in the Information Sheet you referred to as the points to be considered to determine whether taking reasonable steps means taking no steps at all.

If in those cases you had in mind, these two points were not considered, then what was the reason to exclude these points from the consideration in those cases?

49    On 7 March 2013, the Commissioner’s delegate wrote to Dr Ogawa in response to her emails between 28 February 2013 and 6 March 2013. The letter noted that Dr Ogawa’s emails had raised a number of issues in relation to her complaint against Dr Calvird. The delegate said that as that complaint had been closed on 18 February 2011, and reviewed internally on 8 April 2011, she did not propose “to redress these issues again”. The delegate also noted that Dr Ogawa had stated in her emails that she would ask more questions if the reply to her most recent questions did not “disclose the reasons for the OAIC’s conclusions”. In respect of that, the delegate stated that she considered that Dr Ogawa had been provided with the reasons for the Commissioner’s decision in relation to her complaint against the TPH in the intent to decline letter of 18 February 2013.

50    The letter of 7 March 2013 gave Dr Ogawa a further opportunity to provide comments by 22 March 2013. Between 17 April 2013 and 1 May 2013, Dr Ogawa wrote a series of lengthy emails to the delegate which were in the nature of submissions canvassing a range of matters. On 29 May 2013, the Commissioner’s delegate reached a final decision in respect of Dr Ogawa’s complaint against the TPH. The delegate noted that, although some of Dr Ogawa’s responses were received after the date by which the Commissioner had asked her to respond, she had considered the issues raised by Dr Ogawa in the emails. The delegate’s decision was in these terms:

Dr Calvird’s employment status

…

You claim the OAIC did not consider Dr Calvird’s employment status to be an issue in your TPH complaint. As such, you assert it failed to determine or give reasons why Dr Calvird was not an employee of TPH, and erred in relying on a decision in your previous complaint about Dr Calvird (Ref: C14648), which you dispute. You claim an error of law in this regard.

I advise that, in response to the OAIC’s inquiries, TPH confirmed that Dr Calvird is not an employee of TPH. TPH clarified that, as a consultant psychiatrist who is an independent contractor, Dr Calvird had admitting and consulting rights to TPH.

In the circumstances, the OAIC was satisfied with TPH’s response and found no reason to question its veracity. We note your comments in this regard, but there is no information to suggest that Dr Calvird was an employee of TPH, and our view remains unchanged. The OAIC also previously noted that, as a health service provider, Dr Calvird has obligations under the Act in her own right.

As explained in [the delegate’s] letter of 7 March 2013, the OAIC does not propose to reconsider the issues in relation to your previous complaint about Dr Calvird (Ref: C14648) …

NPP 3 – Data Quality issues

Dr Calvird

In your current complaint, you claim TPH provided false information when Dr Calvird and Ms Gordge disclosed personal information about you to the [CDPP] in February 2009.

The OAIC advised it was satisfied Dr Calvird was not an employee of, or in the service of, TPH for the purposes of the Act and that, in any case, it had previously determined that Dr Calvird did not interfere with your privacy in relation to this matter (Ref. C14G48).

You also maintain the OAIC has not considered NPP 3 issues in relation to the acts of Dr Calvird in your previous complaint (Ref: C14648). Briefly, you claim Dr Calvird disclosed personal information about you to the CDPP in February 2009 and that the information was false.

The OAIC has informed you that if you are concerned Dr Calvird misled the CDPP, with the result that this affected the outcome of your court proceedings, we are unable to assist you with this aspect of your complaint and you would need to seek legal advice. The OAIC advised that NPP 3 does not apply where there is an allegation of a deliberate intent to mislead by providing information that is false.

Again, where your matter involves your previous complaint against Dr Calvird, we do not propose to reconsider these issues as explained in our letter of 7 March 2013.

TPH/Ms Gordge

NPP 3 requires that TPH take reasonable steps to make sure the personal information it collects, uses or discloses is accurate, complete and up-to-date.

In this case the OAIC considered that TPH provided incorrect information about you, to Dr Calvird, because of a one-off error.

You claim the available information does not support our view that Ms Gordge, on behalf of TPH, gave incorrect information to Dr Calvird, as there is no information to suggest that Dr Calvird actually checked with Ms Gordge about whether an email was sent to you.

I note that, in her letter to the CDPP dated 23 February 2009, Dr Calvird advised that she checked with Ms Gordge about whether a response to the email had been received from you. At that time, Ms Gordge, to the best of her knowledge, thought the email drafted to you of 16 February 2009 had been successfully sent. However, this information was incorrect and Ms Gordge subsequently became aware, on the following day, that the email had not been transmitted.

On this basis, the OAIC remains of [the] view that TPH provided incorrect information to Dr Calvird because of a one-off error in relation to the email.

Reasonable steps

You submit that TPH did not take reasonable steps to ensure that your personal information was correct before it was disclosed to Dr Calvird, as required by NPP 3. This is on the basis that, even though TPH had the opportunity to check the email had been sent, it failed do so. You consider that when Dr Calvird checked with Ms Gordge as to whether you had responded to the email, Ms Gordge should have also checked that the email to which you were expected to respond had been sent.

I note that, when Dr Calvird asked Ms Gordge whether you had responded to the email, Ms Gordge was unaware that the email to you had not been transmitted. As previously advised, the OAIC does not consider it reasonable for TPH to require its employees to carry out proactive checks to ensure every email sent at the direction of a consultant is actually sent. The OAIC remains of the view that it was reasonable for TPH to assume that emails would be sent in the normal course of events.

What constitutes ‘reasonable’ steps in relation to NPP 3 will depend upon the individual circumstances of each situation. In some instances, such as in your matter, the reasonable steps required by NPP 3 can mean taking no steps at all. The OAIC acknowledges that you disagree on this point, however our view remains unchanged.

The OAIC is aware of your allegations related to the consequences of TPH’s disclosure of incorrect information about you, involving the CDPP and your bail undertaking. However, the OAIC notes that remedies were available to address these consequences. For example, once Ms Gordge identified that the email had not been sent, she (and subsequently, Dr Calvird) took steps to correct the information that had been disclosed about you.

On this basis, the OAIC’s view remains that in this instance it was reasonable for TPH to take no steps to confirm the email had been sent to you, before disclosing your information to Dr Calvird.

Therefore, for the reasons set out in [the 18 February 2013] letter, I have decided under s 41(1)(a) of the Act to decline to investigate your complaint on the grounds that TPH has not breached the Act. This file is now closed.

51    That decision is the third decision in respect of which Dr Ogawa now seeks review.

The complaint against the CDPP

52    On 7 May 2013, Dr Ogawa wrote to the Commissioner alleging that the CDPP had interfered with Dr Ogawa’s privacy. The Commissioner treated Dr Ogawa’s letter as a complaint under s 36 of the Act.

53    Dr Ogawa’s allegation was that the CDPP had interfered with her privacy in two ways: first, by Ms Devereaux writing and filing an affidavit which contained inaccurate information about Dr Ogawa; and second, by Ms Devereaux failing to write and file an affidavit which corrected the inaccuracy of Dr Ogawa’s personal information. That is, the CDPP failed to take reasonable steps to ensure that her personal information was up-to-date.

54    On 21 May 2013, the Commissioner’s delegate wrote to Dr Ogawa expressing an intention to decline to investigate Dr Ogawa’s complaint under s 41(1)(c), on the basis that Dr Ogawa had been aware of the alleged interference with her privacy for more than 12 months. The letter invited Dr Ogawa to provide, by 5 June 2013, a response “before we make a final decision”. Dr Ogawa did not respond to that letter. On 14 June 2013, a delegate of the Commissioner wrote again to Dr Ogawa informing her that the Commissioner had made a final decision under s 41(1)(c) to decline to investigate her complaint on the grounds that it has been more than 12 months since the alleged interference with her privacy.

55    That decision is the fourth decision in respect of which Dr Ogawa now seeks review.

Consideration of the grounds of review

56    Five grounds of review are identified in the originating application this way: the decisions involve error of law; were made taking an irrelevant consideration into account; were made failing to take a relevant consideration into account; no evidence or other material justified the making of the decision; and Dr Ogawa was not afforded procedural fairness in the making of the decisions.

57    Those grounds of review are, on the face of the application, intended to be grounds of review in relation to each of the four decisions.

58    On 27 September 2013, Dr Ogawa filed a document entitled “particulars of the grounds of application”.

59    On 24 March 2014, she filed an amended version of that document (the “Amended Particulars”).

60    Dr Ogawa’s written submissions filed in this proceeding are addressed to each of the Amended Particulars.

61    Although the application seeks review of the four decisions collectively, the Amended Particulars are expressed in relation to particular decisions. In any event, each decision (with the exception perhaps of the second decision) is a separately reviewable decision of the Commissioner. It is therefore necessary to consider each in turn.

The first decision

62    The Amended Particulars in relation to the first decision are these:

1.    The [Commissioner] … erred in failing to find that the Applicant did not authorise Dr Michele Calvird to disclose to the Commonwealth Director of Public Prosecutions any information concerning the Applicant in addition to any failure to comply with the three obligations listed in the Applicant’s written authority provided to Dr Michele Calvird.

2.    The [Commissioner] … erred in failing to find that the Applicant did not authorise Dr Michele Calvird to disclose to the Commonwealth Director of Public Prosecutions any false information concerning the Applicant.

3.    The [Commissioner] … erred in failing to find that the Applicant did not authorise Dr Michele Calvird to collect any information concerning the Applicant from the Director of Public Prosecutions.

4.    The [Commissioner] … erred in failing to find that Toowong Private Hospital interfered with the Applicant’s privacy.

5A.    The [Commissioner] … failed to observe the rules of natural justice by failing to explain the provision which modified the Applicant’s conditional authority for disclosure to be unconditional disclosure.

5.    The [Commissioner] … failed to observe the rules of natural justice by refusing to extend the time for the Applicant to write her submissions.

63    Paragraph 1 of those particulars is essentially a contention that the Commissioner reached an incorrect decision based on an erroneous interpretation of the authorisation which Dr Ogawa gave to Dr Calvird. In considering that contention, it is important to bear in mind that this Court’s role in a judicial review application of the present sort is not to undertake an assessment of the merits of the decision under challenge.

64    Section 41(1)(a) of the Act confers upon the Commissioner an administrative discretion which is conditioned upon the decision-maker’s state of satisfaction. The conjunction of s 41(1)(a) of the Act and cl 2.1(b) of NPP2 is that the Commissioner may decide (that is to say, exercise an administrative discretion) not to investigate further an act about which a person has made a s 36 complaint, if the Commissioner is satisfied that Dr Ogawa had consented to the disclosure, in this case by Dr Calvird to the CDPP, of the information which was disclosed.

65    In Jones v Office of the Australian Information Commissioner [2014] FCA 285, I explained in some detail the principles to be applied by the Court in reviewing the exercise of an administrative discretion in this context:

[19]    As to the s 41(1)(a) discretion, every statutory discretion, or discretionary power, is confined by the subject matter, scope and purpose of the legislation under which it is conferred (FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 368 per Mason J; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355) and every statutory discretion has to be exercised according to “the rules of reason” (R v Anderson; Ex parte Ipec-Air Pty Limited (1965) 113 CLR 177 at 189 per Kitto J; Minister for Immigration and Citizenship v Li (“Li”) [2013] HCA 18; 297 ALR 225; (2013) 87 ALJR 618 at [23] and [24] per French CJ). The rationality required by “the rules of reason” is an essential element in the lawfulness or legality of administrative decision-making (Li, per French CJ at [26]). The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36; Kruger v Commonwealth (1997) 190 CLR 1 at 36; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429; 83 ALJR 1123 at [15]; Li, per Hayne, Kiefel and Bell JJ at [63]).

[20]    The exercise of an administrative discretion by the Information Commissioner, not to further investigate a complaint, conditioned on the Information Commissioner’s state of satisfaction (that the complained of act is not an interference with the privacy of the individual on the footing that he or she is satisfied that a relevant organisation reasonably believed that disclosure was reasonably necessary for the investigation of a criminal offence by an enforcement body), requires the Information Commissioner to be satisfied, according to the rules of reason, that the “specific requirements” of the “express statutory conditions” are established by the material upon which he or she relies. A decision made that fails to reflect a state of satisfaction taking the express statutory conditions into account, according to the rules of reason, is beyond power because it “falls outside the framework of rationality provided by the statute” (Li, per French CJ at [26]).

[21]    Importantly, however, a requirement of legality in decision-making that a decision be reached according to the rules of reason or, put another way for present purposes, reached reasonably, or not unreasonably reached, is not a vehicle for challenging a decision made in contended error of law and beyond power simply because “disagreement” is found with the “evaluative judgment” of the administrative decision-maker. Challenging an administrative decision-maker’s reasoning as illogical or unreasonable may simply be an emphatic way of expressing disagreement with the decision or the merits, and such emphatic disagreement may have “no particular legal consequence” (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J).

[22]    Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how the discretion should be exercised for that of the decision-maker. Accepting then, that there are limits on the Court’s supervisory jurisdiction and that a “standard of reasonableness” is not applied as a mechanism for merits review (or a vehicle for the Court substituting its own view of the manner of exercise of the discretion), but rather a feature of legality in decision-making, leaves open the question of how the standard “is to be applied and how it is to be tested” (Li, per Hayne, Kiefel and Bell JJ at [66]).

[23]    The legal standard of reasonableness must be the standard indicated by the proper construction of the statute which identifies the express statutory conditions and specific requirements upon which the exercise of the discretion rests in determining whether the statutory power has been abused, as falling short of the statutory standard, as a matter of legality in decision-making (Li, per Hayne, Kiefel and Bell JJ at [67]). The legal standard of unreasonableness should not be considered as “limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it” (Li, per Hayne, Kiefel and Bell JJ at [68]).

[24]    In some cases, an inference of unreasonableness may be objectively drawn even where a particular error in reasoning cannot be identified and in that sense the supervisory review of the exercise of an administrative discretion is to be approached in an analogous way to the principles governing the review of the exercise of a judicial discretion in terms of the well-known principles identified in House v The King (1936) 55 CLR 499. Unreasonableness will be demonstrated where “no sensible authority acting with due appreciation of its responsibilities” (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 per Lord Diplock at 1064) would have so decided. Lord Diplock’s observation reflects the requirement of the law that a decision-maker “understand his or her statutory powers and obligations” (Li, per Hayne, Kiefel and Bell JJ at [71]).

[25]    In this case, the decision-maker was required to understand the obligation to have proper regard to the express statutory conditions upon which the exercise of the discretion rested. The more specific errors in decision-making to which Courts often have regard in the exercise of jurisdiction under, for example, the ADJR Act and the jurisdiction conferred on the Court by the Judiciary Act 1903 (Cth) are ultimately all encompassed by the notion of unreasonableness, measured and applied according to a legal standard indicated by the “true construction of the statute”, in determining whether the statutory power has been abused (Li, per Hayne, Kiefel and Bell JJ at [67] and [72]). Unreasonableness is a conclusion which may be applied to a decision “which lacks an evident and intelligible justification” (Li, per Hayne, Kiefel and Bell JJ at [76]).

66    The question, then, is what circumstances informed the Commissioner’s state of satisfaction as to whether Dr Ogawa had consented to the disclosure?

67    In this case, the Commissioner’s delegate did not consider that she needed to look further than the written authorisation provided by Dr Ogawa, contextualised by the terms of the bail undertaking Dr Ogawa had given, and the particular matters which were disclosed by Dr Calvird to Ms Devereaux. The authorisation given by Dr Ogawa (see [13] of these reasons) authorised Dr Calvird to notify the CDPP “of any failure by [her] to comply” with three particular obligations (see the obligations set out at [13]). The Commissioner’s delegate was satisfied that the terms of that authorisation manifested Dr Ogawa’s consent to the disclosure of the information which was disclosed. The delegate’s reasoning process in reaching that state of satisfaction, as explained in the letters of 16 December 2010 and 18 February 2011, seems to have been that the cancellation by Dr Ogawa of her appointment on 29 January 2009 was a matter specifically included in the authorisation (that is, a failure to comply with the obligation to “attend all further appointments for treatment by Dr Calvird” – Item (c)). The delegate then said that she considered that the “subsequent disclosures by Dr Calvird … [were] also made in the context of reporting under your bail conditions” [emphasis added]. That is, the delegate was satisfied that the terms of the authorisation, directed as it was to disclosure of a “failure … to comply” with the three particular obligations, should be understood, impliedly, to permit Dr Calvird, in disclosing Dr Ogawa’s ongoing failure to comply, also to disclose the manner in which Dr Ogawa had failed and was failing to comply, and the circumstances in which Dr Calvird had become aware of the failure to comply.

68    That reasoning process was not unreasonable, in the sense that it was irrational or failed to follow the rules of reason. The delegate’s conclusion was one which was open to her to make on the material before her.

69    Paragraph 1 of the Amended Particulars has no force.

70    As to para 2 of the Amended Particulars, this is essentially the same contention as para 1, except that it refers only to the information disclosed by Dr Calvird which she later found to be incorrect (that is, the statement that an email had been sent to Dr Ogawa on 16 February 2009). The delegate did not draw a distinction, in terms of the consent issue, between disclosure of correct and incorrect information. The delegate noted that if Dr Ogawa was concerned that Dr Calvird had misled the CDPP, she could seek legal advice, but that the Commissioner did not have jurisdiction to consider that aspect of her complaint.

71    To the extent that Dr Calvird disclosed information which she believed, at the time, to be correct, the delegate plainly saw no reason to make a distinction, for the purpose of the consent given by Dr Ogawa, between information which was in fact correct and information which later turned out to be incorrect.

72    The delegate concluded that Dr Ogawa had consented to the disclosure of all of the information disclosed by Dr Calvird to Ms Devereaux.

73    For the reasons I have expressed in relation to para 1 of the Amended Particulars, it was open to the delegate to be satisfied that Dr Ogawa had consented to that disclosure.

74    As to para 3 of the Amended Particulars, the Commissioner submitted in this proceeding that the “decision-maker was also satisfied that the alleged collection of information by Dr Calvird about whether the applicant was in custody at the relevant time fell within the terms of the applicant’s authority”. The Commissioner submitted that the decision-maker considered that Dr Ogawa’s custodial status formed a necessary part of Dr Calvird assessing whether Dr Ogawa was attending “appointments for treatment by Dr Calvird” and whether Dr Ogawa was exhibiting a “failure to comply” with “obligations” she had accepted she would discharge. That followed because if Dr Ogawa were in custody at the time of an appointment for treatment, that would have provided an explanation as to “why she had not communicated with Dr Calvird other than her non-compliance with treatment and resulting breach of the applicant’s bail conditions”. Thus, there may have been no “failure” on Dr Ogawa’s part to comply with the accepted obligations set out at [13].

75    The Commissioner submitted that it was therefore “reasonably open to the decision-maker to conclude the collection was authorised within the terms of the Act”. That is to say, the Commissioner was satisfied for the purposes of s 41(1)(a) that the collection was not an interference with the privacy of an individual.

76    The difficulty with that submission is that there is simply no statement in either the delegate’s letter of 16 December 2010 or that of 18 February 2011, which makes any reference to Dr Ogawa’s complaint about the collection by Dr Calvird of information from Ms Devereaux. In her response on 16 January 2011 to the letter of 16 December 2010, Dr Ogawa specifically pointed out to the delegate that the delegate had “failed to make a decision in respect of the acts of Dr Michele Calvird referred to in subparagraph 11(2) of my Statutory Declaration”, namely, that Dr Ogawa had expected the Commissioner to consider whether there was a breach of her privacy:

11.     … in respect of, at the very least, the following acts by Dr Michele Calvird:

…

(2)    On 5 February 2009, Dr Michele Calvird asked Ms Robert Devereaux whether I was in custody and obtained an answer to that question from [Ms Devereaux].

77    In the delegate’s letter of 18 February 2011 (described earlier in these reasons) the delegate summarised the contentions put forward by Dr Ogawa in her response to the letter of 16 December 2010. The delegate’s summary covered each of the matters raised by Dr Ogawa in her response with the exception of the specific contention about the failure to consider whether the collection by Dr Calvird of information from Ms Devereaux was a breach of Dr Ogawa’s privacy. Contrary to the submissions put for the Commissioner, it does not appear on the available material that the delegate ever reached a state of satisfaction that the alleged collection of information by Dr Calvird fell within the terms of the applicant’s authority. Rather, it seems that the delegate never considered the issue. If the delegate had considered the issue, one might expect the delegate to have made some reference to NPP1, which sets out requirements in relation to an organisation’s collection of information (as opposed to NPP2 which relates only to the use and disclosure of information which has been collected). The delegate, however, limited her discussion of the applicable law to NPP2 and NPP3.

78    The Commissioner now submits that it was reasonably open to the delegate to conclude the collection was authorised within the terms of the Act. That may or may not be so. The issue, however, is that there is nothing in the material before me which suggests that the delegate in fact reached that conclusion. The delegate therefore failed to consider a relevant matter.

79    For that reason, the first decision must be set aside.

80    Nevertheless, I will briefly say something about the remaining particulars of Dr Ogawa’s grounds of review in respect of the first decision.

81    Paragraph 4 of the Amended Particulars has no substance. The delegate did not err by failing to give consideration to a possible interference with Dr Ogawa’s privacy by the TPH, in circumstances where no complaint had at that time been lodged by Dr Ogawa against the TPH. Pursuant to s 40(1)(b) of the Act, the Commissioner is only required to investigate an act or practice if a complaint about the act or practice has been made under s 36.

82    Paragraph 5A of the Amended Particulars asserts that the Commissioner failed to observe the rules of natural justice “by failing to explain the provision which modified [Dr Ogawa’s] conditional authority for disclosure to be unconditional disclosure”. That contention has no force. It is not, in substance, an assertion relating to the rules of natural justice, but rather, is an assertion by Dr Ogawa that she considers the delegate to have reached an unsustainable view as to the scope of the authority provided by Dr Ogawa to Dr Calvird. For the reasons I have explained above, the relevant question is one as to the delegate’s state of satisfaction regarding the consent given by Dr Ogawa. As I have already said, I consider that the delegate reached the necessary state of satisfaction and did not do so in an unreasonable way (in the relevant sense of that term).

83    Paragraph 5 of the Amended Particulars asserts that the Commissioner failed to observe the rules of natural justice by refusing to extend the time for Dr Ogawa to write her submissions. Whether or not that contention has any force, I consider that Dr Ogawa should be given an opportunity, should she wish to do so, to make further written submissions before the Commissioner makes a decision whether or not to investigate Dr Ogawa’s complaint against Dr Calvird. That is because the Commissioner’s view that there had been no interference with Dr Ogawa’s privacy in respect of the collection of information by Dr Calvird from Ms Devereaux has only become apparent now, from the submissions filed in this proceeding. Dr Ogawa therefore had no opportunity to respond to that view before the decision was made.

The second decision

84    The Commissioner submits that the second decision is not a “decision” which is amenable to review under the AD(JR) Act, citing Hammond v Australian Information Commissioner [2013] FCA 802 at [19] per Davies J. The Commissioner accepts that the position under s 39B of the Judiciary Act is “less settled” and that if the second decision is reviewable at all, it is only reviewable on that basis. However, the Commissioner submits that it is unnecessary to determine the question here, because the internal review decision is of no statutory consequence and does not supplant the first decision. The Commissioner accepts that the outcome in respect of the second decision should follow that of the first decision.

85    Dr Ogawa’s contentions in paras 6 to 9 of the Amended Particulars are in substance the same as the contentions in relation to the first decision. Paragraph 8 must, I think, be understood to contend that the Commissioner erred in failing to hold that the failure of the first decision to consider the collection of the Applicant’s information by Dr Michele Calvird was an error.

86    For the same reason that the first decision must be set aside, the second decision must also be set aside.

The third decision

87    The Amended Particulars in relation to the third decision are these:

12.    The [Commissioner] … erred in finding that NPP3 does not apply when there was an allegation that the personal information disclosed was intentionally inaccurate, incomplete or not up-to-date.

13.    The [Commissioner] … misconstrued that “taking reasonable steps” within the meaning of NPP3 means “taking no steps at all”.

14.    The [Commissioner] … failed to observe the rule of law by concluding that the Commission’s assessment method of “reasonable steps” published in “Private Sector Information Sheet 28 – NPP3 Data Quality” does not apply to the Applicant’s case.

15.    The [Commissioner] … erred in finding that Toowong Private Hospital by taking no steps at all complied with NPP3.

16.    The [Commissioner] … failed to observe the rules of natural justice by refusing to answer the Applicant’s questions Nos 2 to 6.

88    As will be apparent from the series of correspondence between the Commissioner’s delegate and Dr Ogawa prior to the making of the third decision, there was a large range of matters which Dr Ogawa raised in respect of the Commissioner’s decision not to investigate her complaint against the TPH (including matters relating to NPP2 and matters relating to whether or not the TPH was, for the purposes of the Act, responsible for the actions of Dr Calvird). However, when one reads the Amended Particulars together with Dr Ogawa’s submissions filed in this proceeding, it is apparent that in this proceeding she presses only two bases of challenge to the third decision: first, the contention, of which para 15 of the Amended Particulars is a conclusionary statement, that the Commissioner erred in finding that the TPH had complied with NPP3 despite taking no steps at all; and second, that the Commissioner failed to observe the rules of natural justice by, as she alleges, his refusal to respond to a series of matters raised by her in her responses to the delegate’s “intent to decline” letters.

89    As to the first of those contentions, Dr Ogawa’s submissions in respect of para 12 of the Amended Particulars point in particular to the statement by the Commissioner’s delegate that Ms Gordge had, “to the best of her knowledge”, thought the email drafted to Dr Ogawa on 16 February 2009 had been successfully sent, and the delegate’s conclusion from that that the TPH provided incorrect information to Dr Calvird because of a one-off error in relation to the email. Dr Ogawa says that in the absence of information that Ms Gordge or the TPH had taken any steps to prevent false information from being released, the Commissioner’s delegate “was not in a position to be able to conclude that there was no breach in contravention of [NPP3] on the part of [Ms Gordge] or her employer [the TPH]”. That must be understood as a contention that the delegate could not reasonably have concluded that Ms Gordge (for whose actions the TPH was responsible) had taken reasonable steps to make sure that the personal information TPH collected, used or disclosed was accurate, complete and up-to-date.

90    The conjunction of s 41(1)(a) of the Act and NPP3 is that the Commissioner may decide not to investigate further an act about which a person has made a s 36 complaint, if the Commissioner is satisfied that the organisation (in this case, the TPH) did not fail to take reasonable steps to make sure that the personal information it collected, used or disclosed was accurate, complete and up-to-date. Although that requires, as I have already said, an examination of the Commissioner’s state of satisfaction, it is nevertheless necessary to determine what, as a matter of law, is meant in NPP3 by the term “reasonable steps”.

91    The Commissioner has published an “information sheet” entitled “Private Sector Information Sheet 28 – NPP 3 Data Quality”. The information sheet is said to be provided to “assist private sector organisations covered by the [Privacy Act] to comply with their obligations under [NPP3]”. The information sheet describes eight particular “factors” which organisations should consider when assessing what are reasonable steps in terms of complying with NPP 3. It then says this:

In some limited circumstances, where an appropriate balancing of the above factors has been undertaken, reasonable steps may mean taking no steps at all. Organisations would need to determine this on a case by case basis.

92    I do not consider that statement to be inconsistent with the purposes of the Act. “Reasonable steps”, in the scheme of the Act, calls for a balancing of the interests of the individual against the burden on the organisation.

93    In the delegate’s letter of 18 February 2013, the delegate said this:

Notwithstanding the possibility of human error, I do not consider it reasonable for TPH to carry out proactive checks to ensure that every email, sent at the direction of Dr Calvird, was actually sent. I consider it reasonable for TPH to assume that emails would be sent in the normal course. When asked by Dr Calvird whether she had sent the email, it was satisfactory for Ms Gordge to rely on her own memory of sending the email. It was not necessary for her to check whether the email had transmitted. I consider that, in the circumstances of this matter, reasonable steps amounted to TPH taking no steps and that, in this instance, TPH has met the requirements in NPP 3 of the Act.

94    In the letter of 29 May 2013, the delegate repeated those views in these terms:

What constitutes ‘reasonable’ steps in relation to NPP 3 will depend upon the individual circumstances of each situation. In some instances, such as in your matter, the reasonable steps required by NPP 3 can mean taking no steps at all. The OAIC acknowledges that you disagree on this point, however our view remains unchanged.

The OAIC is aware of your allegations related to the consequences of TPH’s disclosure of incorrect information about you, involving the CDPP and your bail undertaking. However, the OAIC notes that remedies were available to address these consequences. For example, once Ms Gordge identified that the email had not been sent, she (and subsequently, Dr Calvird) took steps to correct the information that had been disclosed about you.

On this basis, the OAIC’s view remains that in this instance it was reasonable for TPH to take no steps to confirm the email had been sent to you, before disclosing your information to Dr Calvird.

95    It is clear from those statements that the Commissioner’s delegate was satisfied that the TPH had not failed to take reasonable steps to make sure that the personal information it (or its employee) collected, used or disclosed was accurate, complete and up-to-date. An analysis of the delegate’s reasons demonstrates that the delegate considered that, if any further steps were required to meet the “reasonable steps” requirement, that would have imposed an unnecessary burden on the organisation. That was so, in circumstances where the consequences of disclosing incorrect information of the kind disclosed would normally be easily remedied by promptly correcting the information.

96    The way that the delegate balanced and weighed relevant matters in reaching the necessary state of satisfaction is not something which it is open to this Court to review in an application such as the present. There seems to me to be no basis upon which it can be said that the delegate did not reach the necessary state of satisfaction in a reasonable way.

97    Moreover, in reaching that state of satisfaction, the matters to which the delegate had regard clearly included those described in Information Sheet 28. Paragraph 14 of the Amended Particulars is premised upon an assertion that the Commissioner concluded that the Commission’s assessment method of “reasonable steps” published in Information Sheet 28 did not apply to Dr Ogawa’s case. The delegate did not, however, reach such a conclusion. In fact, it seems to me that, in reaching the necessary state of satisfaction, the matters to which the delegate had regard clearly included many of those described in Information Sheet 28. It was not necessary for the delegate to expressly address each of the eight factors in Information Sheet 28, which are, in any event, a guide only.

98    Paragraphs 12 to 15 of the Amended Particulars therefore have no force.

99    As to para 16 of the Amended Particulars, I have set out earlier in these reasons at [44] to [48] the “questions” (which I will call Question 2, 3, 4, 5 and 6) which Dr Ogawa contends that the Commissioner refused to answer and that, in so refusing, the Commissioner failed to observe the rules of natural justice.

100    Questions 2 to 4 related to the first decision (i.e. in respect of the complaint against Dr Calvird). The Commissioner’s response to these questions was contained in the letter of 7 March 2013, which explained that the issues Dr Ogawa had raised related to the complaint against Dr Calvird and, as that complaint had previously been closed, the Commissioner did not propose to “redress these issues again”. The Commissioner did not fail to comply with the rules of natural justice by failing to respond in detail to each of Questions 2 to 4 in the context of the complaint against the TPH, not least because the questions were irrelevant to that complaint.

101    Question 5 does not seem to me to be relevant to the complaint against the TPH either. The sole question posed by Question 5 is whether the Commissioner was aware of certain provisions of the Bail Act relating to surrendering into custody when required by the Court. Dr Ogawa does not explain, either in the email containing Question 5 or in her submissions in these proceedings, what relevance Question 5 had to her complaint against TPH. The Commissioner did not fail to comply with the rules of natural justice by failing to respond specifically to Question 5. It was simply not relevant.

102    As to Question 6, the Commissioner’s delegate said in the letter of 7 March 2013 that she considered that Dr Ogawa had been provided with the reasons for the Commissioner’s decision in relation to the complaint against TPH in the intent to decline letter of 18 February 2013.

103    The delegate then said this:

The OAIC is not able to respond to every question you have raised. We have referred you to resources that may assist you with your questions. We will of course look at your arguments regarding legal matters if they are relevant to our decision-making process. However, we are unable to provide legal advice, and do not intend to answer further questions you may ask about the law, unless it would be necessary for our decision-making process. If you wish to seek legal advice in relation to this matter, it is open for you to do so and to provide any further comments to this office by 22 March 2013.

104    In the circumstances, that was an entirely appropriate response for the Commissioner to make.

105    The requirement of natural justice in administrative decision making does not require the decision maker to answer every question put to him or her. In according a person procedural fairness, the so-called hearing rule provides that a person whose interests may be adversely affected by a decision is entitled to know the case sought to be made against him or her and to be given an opportunity of replying to it: Kioa v West (1985) 159 CLR 550 at 582-3 per Mason J.

106    In the present case, Dr Ogawa was given multiple opportunities to respond, after receiving the Commissioner’s views on 5 November 2012, 18 February 2013 and 7 March 2013 and before the Commissioner’s final decision was made on 29 May 2013. She made use of those opportunities, providing a significant amount of material to the Commissioner. In those circumstances, it simply cannot be said that she was not given a fair opportunity to understand the Commissioner’s view and to respond to it.

107    Paragraph 16 of the Amended Particulars has no force.

108    Accordingly, Dr Ogawa has not established any ground of review in respect of the third decision. Her application, so far as it seeks review of that decision, should be dismissed.

The fourth decision

109    The Amended Particulars in relation to the fourth decision are these:

17.    The [Commissioner] … erred in failing to apply the test established in Esther Investment Pty Ltd v Makalinga Pty Ltd (1989) 2 WAR 196 to determine the exercise of the [Commissioner’s] discretion not to investigate the Applicant’s complaint.

18.    The [Commissioner] … erred in declining to investigate the Applicant’s complaint.

110    Section 41(1)(c) provides that the Commissioner may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made under s 36 if the Commissioner is satisfied that the complaint was made more than 12 months after the complainant became aware of the act or practice. Again, this section gives the Commissioner an administrative discretion conditioned upon the Commissioner’s state of satisfaction. Dr Ogawa was aware of the alleged interference from 20 February 2009 when she was served with the affidavit of Ms Devereaux. It is therefore simply not possible to suggest that the Commissioner could not have been reasonably satisfied that the complainant had become aware of the act or practice more than 12 months before making the complaint. Dr Ogawa’s contention, though, is that although the condition was met, the discretion was not exercised according to law.

111    Dr Ogawa contends that the Commissioner erred in failing to apply the test established in Esther Investment Pty Ltd v Makalinga Pty Ltd (1989) 2 WAR 196. That case, however, was concerned solely with the question of the matters which are relevant to the Court’s exercise of its discretion to extend the time for filing an appeal. That situation is quite different to the administrative discretion conferred on the Commissioner in this case. Although the kind of factors which were considered relevant to the type of discretion in Esther may in some cases be relevant to the s 41(1) discretion, they are not the only matters which are relevant to the s 41(1) discretion, nor are they matters which the Commissioner is required to consider.

112    There may be any number of matters relating to the internal administration of the Commissioner’s office which would be relevant to the exercise of the s 41(1)(c) discretion.

113    Moreover, it is well established that a policy which guides the exercise of a broad discretion is permissible, so long as the general policy is sufficiently flexible to allow individual cases to be considered on their merits, and the policy is consistent with the general purposes and requirements, express or implied, of the Act: Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 206 per French and Drummond JJ. The Commissioner may, for example, in circumstances where his office receives many complaints, decide to prioritise investigation of those complaints which have been lodged within the relevant twelve month period, and only investigate complaints outside that period if there are good reasons to do so.

114    In this case, Dr Ogawa was invited to respond to the Commissioner’s intention to decline to investigate her complaint, before a final decision was made. It was open then to Dr Ogawa to explain to the Commissioner why, despite having been aware of the alleged interference with her privacy for more than twelve months, the Commissioner should nevertheless investigate her complaint. She did not do so. The delegate noted in the email of 14 June 2013 that she had received no information from Dr Ogawa in response to the “intent to decline” email of 21 May 2013.

115    In her submissions in this proceeding, Dr Ogawa says that her complaint against the CDPP would have been made earlier if the Commissioner had made a decision on the complaints against Dr Calvird and the TPH earlier. She also says that the delay in making the complaint against the CDPP is not prejudicial to any party, including the CDPP itself. Those matters, which may or may not have any force, are matters which Dr Ogawa could have put to the Commissioner in response to the delegate’s email of 21 May 2013. As I have said, she did not do so. The Commissioner’s decision cannot now be impugned for failing to consider matters which had not been put to him.

116    It follows that Dr Ogawa’s application for review of the fourth decision must be dismissed.

117    Accordingly, the first and second decisions will be set aside, and the originating application otherwise dismissed.

118    As s 41(1) is an administrative discretion which the Commissioner may choose whether or not to exercise, I will not direct the Commissioner to make a new decision. That does not, of course, preclude the Commissioner from making a new decision under s 41(1) in respect of the complaint against Dr Calvird, according to law and consistent with the observations made in these reasons.

119    Since the applicant has been only partially successful in her application, I will direct the parties to file, within 14 days, submissions as to the appropriate order to be made as to costs.

Associate:

Dated:    4 March 2015