Federal Court of Australia

Jaworski v Australian Information Commissioner [2022] FCA 1400

ORDERS

THE COURT ORDERS THAT:

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

(a)    the decision dated 16 September 2021 declining to investigate the applicant’s complaint of a breach of privacy against Mr Gerald Jaworski under s 41(1) of the Privacy Act 1988 (Cth).

2.    The application is otherwise dismissed.

3.    There be no order as to costs.

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

REASONS FOR JUDGMENT

ROFE J:

Introduction

1    By an originating application for judicial review under the Administrative Decision (Judicial Review) Act 1977 (Cth) (the ADJR Act), filed on 13 October 2021 (the originating application), the applicant, Mr Gerald Jaworski, seeks review of a decision of the delegate of the respondent, the Australian Information Commissioner (the Commissioner).

2    Part V of the Privacy Act 1988 (Cth) (the Privacy Act) deals with complaints and investigations about acts or practices that may interfere with a person’s privacy. A person may complain to the Commissioner about an act or practice that may be an interference with their privacy (s 36), and if a complaint is made, the Commissioner is obliged to investigate it (s 40) except in certain circumstances (s 41). One of those circumstances is where the Commissioner is satisfied that an investigation, or further investigation, of the act or practice is not an interference with the privacy of the individual (s 41(1)(a)).

3    In this case the applicant made a complaint to the Commissioner about of a breach of the applicant’s privacy by the Chartered Accountants Australia and New Zealand (CA ANZ).

4    On 16 September 2021, after extensive correspondence with the applicant and the CA ANZ, a delegate of the Commissioner (the delegate), made a decision to exercise the statutory discretion under s 41(1)(a) of the Privacy Act not to investigate the applicant’s complaint, on the basis that the CA ANZ was not in breach of the Privacy Act. Written reasons were provided.

5    The applicant seeks judicial review in this Court of the 16 September 2021 decision (the decision).

6    For the reasons which follow, I find the respondent fell into error in the exercise of the discretionary power conferred under s 41(1)(a) of the Privacy Act.

Determined on the papers

7    The applicant is self-represented.

8    I ordered that the applicant’s originating application proceed and be heard and determined on the papers. I made directions for the filing of any further documents, and submissions in chief, response and reply by the applicant and the Commissioner.

9    There was no challenge to the validity of the delegation of the Commissioner’s powers to the delegate for the purposes of making the decision.

10    The originating application seeks orders that:

(a)    the Commissioner revisit the decision and reasons; and

(b)    the Court issue a cost capping order to limit the costs for each party to nil.

11    The applicant filed a number of documents in support of his application. He relies on the following documents:

(a)    Concise statement dated 14 October 2014;

(b)    A case document with attachments, including the correspondence set out in a table in the applicant’s genuine steps statement dated 14 October 2021, the CA ANZ’s Notice of Meeting, an accompanying Information Sheet and the proposed special motions sought;

(c)    Submissions dated 16 March 2022; and

(d)    Comments on the respondent’s outline dated 18 April 2022.

12    The respondent filed a number of relevant documents including a copy of the decision and the correspondence of the Commissioner’s Office with the applicant and the CA ANZ which preceded the decision.

13    The respondent filed submissions on 13 April 2022.

14    The applicant filed further submissions on 18 April 2022.

15    On 25 May 2022, the respondent filed submissions in reply.

16    Upon reading the submissions and materials filed with the Court it appeared to me that there may be an issue regarding the delegate’s characterisation of the applicant’s personal information that was used by the CA ANZ in the alleged breach of the APPs, the subject of his Complaint. This issue had not been addressed specifically in the parties’ submissions. I invited both parties to submit further submissions (limited to 5 pages) within two weeks.

17    Both parties provided short submissions in response. In his response, the applicant noted that CA ANZ had as at September 2022, removed the material the subject of his complaint from the CA ANZ website.

Background

18    The applicant has been a member of the CA ANZ and its predecessor for over 30 years.

19    On 23 September 2020, the applicant, together with nine other members, sought to requisition 38 special motions for consideration at the upcoming annual general meeting (AGM). The 38 motions related to a range of issues, including disclosure in CA ANZ’s financial accounts, governance structure, overseas travel costs and remuneration of senior executives.

20    The CA ANZ Board considered that the proposed motions were not appropriate to be individually put to the members at the AGM and decided not to put the motions to the members at the AGM, and instead to address the general themes of the motions at the AGM.

On 4 November 2020, after the decision to quash the proposed motions, CA ANZ published a Notice of Meeting and an accompanying Information Sheet. The Notice of Meeting and Information Sheet were published on the CA ANZ website in the lead up to the AGM.

21    Despite the Board’s decision that the 38 proposed motions could not be validly put to members, the Notice of Meeting included the following statement:

On 25 September 2020, CA ANZ received a notice from Mr Gerald Jaworski and 9 other members, seeking to requisition 38 special motions (Requisition) for consideration by members at the AGM. The motions will not be put to the AGM as they are not motions that can legally be proposed by members or are not in a form appropriate to put to the meeting. Further detail in respect of the Board’s response to the Requisition is set out in the Information Sheet.

(Emphasis added)

22    The Information Sheet included information as to how members could attend the AGM virtually, how they could ask questions at the AGM and what to do if they experienced technical difficulties. The Information Sheet also contained the following:

Why did the Board decide not to put the Requisition to Members?

The Requisition was lodged by Mr Gerald Jaworski and was supported by 9 other members.

Mr Jaworski is a member with whom CA ANZ has always engaged in good faith for a period of 3 years by responding to a high volume of communications on numerous topics, from transparency and governance to the interpretation of new international accounting standards and the member benefits program.

Despite CA ANZ’s significant efforts to share information and address his wide ranging concerns directed to staff across the organisation, Mr Jaworski has made unsolicited approaches to fellow members via email, community and social platforms, including in relation to matters that have been addressed by CA ANZ numerous times previously. Mr Jaworski has shared his views in a range of public contexts, including in approaches to the Governor General, politicians, journalists and leaders of the accountancy profession.

The 38 special motions proposed by Mr Jaworski relate to a range of matters, including disclosure in CA ANZ’s financial statements, CA ANZ’s corporate governance structure and whether its post-merger structure is appropriate, its overseas offices, its overseas travel costs, its disclosure in relation to the remuneration of its CEO and senior executives and its ability to act as an advocate in the public good.

Some of the motions proposed are more in the way of a comment or question; others traverse matters upon which Members have already been asked to vote, such as the amalgamation with NZICA in 2014. Others relate to matters that CA ANZ has already actioned, such as enhanced executive remuneration disclosure. A copy of the 38 special motions is available on our website.

In addition to satisfying the procedural requirements set out in the By-Laws, proposed motions must also satisfy certain legal principles. CA ANZ has thoroughly tested whether the special motions are of a kind that can be validly put to members in light of these principles and has determined that they were not motions that members could legally propose or were not in a form appropriate to put to the meeting.

Nevertheless, the Board believes that it is important to address issues raised by Members. The Chair of the Board and the President will therefore spend time at the AGM addressing some of the themes raised by the proposed motions and Members will be able to ask questions.

(Emphasis added)

23    I have highlighted sections of the Notice and Information Sheet in bold and italics to indicate the parts of those documents which the applicant identified in his Concise Statement, which he considered to constitute his personal information.

24    A full copy of the 38 special motions was posted on the CA ANZ website.

25    The applicant made a complaint to the CA ANZ privacy officer on 6 November 2020, about the inclusion of his personal information on the Notice of Meeting and Information Sheet and any other CA ANZ source. The substance of the applicant’s complaint to CA ANZ is set out below:

Dear CAANZ Privacy Officer

It recently came to my attention that my personal information has been used by CAANZ in a manner not authorised by me for reasons difficult to understand.

Firstly, I would appreciate the immediate removal of my personal information from all sources published by CAANZ.

At present, I'm only aware of one source which is on the Notice of Meeting (and Information Sheet relevant thereto) located on the CAANZ web site.

Secondly, my personal information would appear to be entirely irrelevant to the board's responsibility to its members in relation to the motions put to it under the By-Laws. Could you please explain the reasons and motivations for divulging my personal information.

In this regard, of the ten members who lodged a notice with the CAANZ board to put 38 motions for a member vote as part of the forthcoming CAANZ 2020 AGM, I was singled out. The personal information of the other nine members was not revealed, only my personal information was published and I would like to understand why that was considered by CAANZ to be appropriate, necessary and legal when the content of the document should be the only concern, rather than the name of the postman.

I would appreciate your acknowledgement of this request and also confirmation of the removal.

By copy to the "governance" email address, I hope to expedite the requested removal and since that address does not appear to acknowledge emails, I've also copied this to Liz Stamford to assist the CAANZ internal process.

26    On 7 November 2020, the applicant received a response from the CA ANZ’s lawyers, which stated in part:

We understand that you have since complained to Chartered Accountants ANZ about the references to you by name in the disclosure, citing privacy concerns. However, you should appreciate that you were the primary requisitioning member and that the context, set out in the material, was relevant to an understanding by members of the relevant background.

27    On or about 8 November 2020, and after receiving the applicant’s complaint, CA ANZ sent links to the Notice of Meeting and Information Sheet on the CA ANZ website to all of its over 128,000 members.

28    The applicant made a complaint to the Commissioner on 9 November 2020 (the Complaint). In the Complaint, the applicant sought that the CA ANZ remove his personal information from its website or anywhere else under its control accessible by the public. The Complaint attached a copy of the applicant’s complaint to the CA ANZ, the CA ANZ’s lawyer’s response to the complaint and the applicant’s response, and attached links to the Notice and Information Sheet. In the introduction to the Complaint, the applicant wrote:

The respondent is currently using the unauthorized disclosure my personal information apparently as some form of a retribution campaign for exposing misbehaviour by its senior officers. I have brought this to their urgent attention which was acknowledged but disputed by their lawyers for spurious reasons. If I were to wait your generally required 30 days, all the damage would by then have been done (ie the protections I am supposed to be afforded would have been denied). The disclosures have already been exacerbated since I requested action, rather than removed.

29    On 30 June 2021, the delegate sent an email to the CA ANZ, noting that the Commissioner had received a privacy complaint from the applicant about the CA ANZ, and that the delegate was conducting preliminary enquiries under s 42 of the Privacy Act. The email attached a copy of the Complaint and requested that the CA ANZ provide the Commissioner with a response by 7 July 2021. The same day, the delegate notified the applicant that it had sent a copy of the Complaint to the CA ANZ.

30    Extensive correspondence then ensued as between the delegate and the CA ANZ and the applicant and between the applicant and the CA ANZ in the lead up to the delegate making the decision. Relevant parts of the correspondence are summarised below. An important aspect to note in the chain of correspondence is the focus on the disclosure of the applicant’s name as the relevant personal information, the subject of the Complaint. I have highlighted in bold and italics the sections in the correspondence which illustrate this focus.

31    On 6 July 2021, the CA ANZ provided its response to the Complaint. After an introductory section describing CA ANZ’s lengthy interaction with the applicant and its reasons for not putting the 38 proposed motions to the members at the AGM, the response stated:

The Information Sheet discloses the name of Mr Jaworski. It should be noted (as set out above) that Mr Jaworski had already posted the information about the 38 special motions on his publicly available website.

CA ANZ understands that it has obligations under APP 6 in respect of disclosing personal information, including Mr Jaworski’s name. However, CA ANZ believes that it was, and remains, entitled to disclose Mr Jaworski’s name, on the basis that:

(i) the disclosure was relevant to provide CA ANZ members of the relevant background to the special motions; and

(ii) Mr Jaworski should have reasonably expected CA ANZ to disclose his name. This is because of Mr Jaworski’s public activities in relation to CA ANZ (as set out above), including that he has spoken to the media about his governance concerns in the past and specifically uploaded the document containing the 38 proposed motions on his own website.

Although that document does not contain Mr Jaworski’s name, other documents on his website do.

…

For completeness, when becoming a new member or renewing their membership, CA ANZ members (including Mr Jaworski) are asked to consent to CA ANZ’s Privacy Policy which sets outs the way CA ANZ uses and discloses personal information. In particular, section 2.4(d) states that one of the purposes that CA ANZ’s uses personal information is for sending subscription renewals, voting papers and other information relevant to our functions, responsibilities and obligations under our Charter, By-Laws, applicable laws, codes, policies, practices and guidelines. In CA ANZ’s view, the Notice of Meeting and the Information Sheet fall within this category from a governance function perspective. It is common corporate practice for the names of persons submitting motions to be disclosed as part of the ordinary course of governance process. It is therefore reasonable for members who submit the motions to expect that their names will be disclosed in communications about the motions, Notice of Meeting, AGM etc which includes online publications.

3. Mr Jaworski’s Complaint

Mr Jaworski notified CA ANZ of his concern about the disclosure of his name in these documents on the CA ANZ website on 6 November 2020 (the subject matter of the Complaint now made to OAIC).

(Emphasis added)

32    The sections of the CA ANZ response highlighted in bold and italics above, show that the CA ANZ considered the applicant’s claim was limited to the disclosure of his name in the Notice of Meeting and Information Sheet.

33    On 9 July 2021, in an initial response to the Commissioner’s invitation of that same date to comment on the CA ANZ response of 6 July 2021, the applicant observed:

Secondly, even if my name were disclosed as one of the submitters, the issue with the disclosures on the CAANZ website is that it goes much further by the false portrayal I mentioned above (ie CAANZ has apparently disregarded its privacy law obligations in its endeavour to portray me as some kind of trouble-maker to deflect attention away from the real issues).

34    On 12 July 2021, the applicant provided a further response to the Commissioner to the CA ANZ 6 July 2021 response. In this further response, the applicant specifically addressed the purported “secondary purpose” exception for gathering the personal information raised by the CA ANZ:

… I'd also like to make clear that in my view, CAANZ does not appear to satisfy the requirements of Australian Privacy Principle 6 in relation to the use or disclosure of my personal information. Specifically, clause 6.1 prevents CAANZ from disclosure since I have not consented and also, clause 6.3 obviously does not apply in this case, and clause 6.2 does not apply for two reasons. The first is that I would not reasonably expect CAANZ to use the information for a "secondary" purpose.

The second reason is that even if that wasn't the case, the relevant "secondary purpose" is not directly related to or even related to the primary purpose. This is because the primary purpose of collecting my name (along with the other nine names) was to enable CAANZ to satisfy itself that the proposed motions were validly lodged by members. That's the only purpose of collecting the names. Once CAANZ established that the motions were validly lodged by ten members, they had no further right to use any of the names (and this likely explains why CAANZ did not attempt to use any of the other names).

The "secondary purpose" of CAANZ in using my name has nothing to do with the primary purpose (ie lodgement of the motions) but instead is a purpose of defending against the accusations of misconduct effectively levelled at CAANZ by the ten members. It seems CAANZ is unable to properly defend against the misconduct allegations, and therefore resorts to using and discrediting my name to deflect attention from its own actions. Such use is unconscionable under the privacy rules, and I hope you can do something about it.

35    On 26 July 2021, the delegate wrote to CA ANZ. In the email, the delegate summarised the responses received from CA ANZ and the applicant as follows:

In CA ANZ’s response, it provides the following information:

•    In the lead up to its AGM, CA ANZ posted a full copy of the Notice Meeting, 38 special motions and an Information Sheet on the CA ANZ website. The Information Sheet disclosed Mr Jaworski’s name

•    It had noted that Mr Jaworski had already posted the 38 motions on his website prior to posting the Information Sheet on its website

•    It is of the view that the Notice of Meeting and the Information Sheet falls within its governance function, and common corporate practice is for the names of persons submitting motions to be disclosed as part of the governance process

In Mr Jaworski’s response, he provides the following information:

•    The 38 proposed motions were lodged by 10 CA ANZ members who all expected that their names remain private. However, CA ANZ has only disclosed his name on the information sheet. Mr Jaworski refers to himself as the “postman” who delivered the 38 motions to CA ANZ

•    He believes that CA ANZ has not provided any reasons why the disclosure of his name was relevant for the consideration of the proposed motions, or why CA ANZ did not disclose the names of the other 9 members.

36    The delegate observed that from the information before her it was unclear whether the inclusion of the applicant’s name on the Information Sheet was relevant in the circumstances, in accordance with APP 10.2. The delegate requested a response from CA ANZ to four questions:

1. Please provide information about CA ANZ’s processes for disclosing information about individuals who propose motions.

2. Is CA ANZ authorised or required under any law to disclose the names of all the individuals who are involved in the proposition of a motion? Please provide further details.

3. In light of Mr Jaworski’s further response, does CA ANZ still consider that the disclosure of his personal information was authorised under APP 6? Please provide details.

4. Do you have any further information or evidence that is relevant to this complaint?

37    CA ANZ provided a response to the delegate on 2 August 2021. The responses to the four questions are as follows:

1. Please provide information about CA ANZ's processes for disclosing information about individuals who propose motions.

We note that individuals proposing motions to be put to CA ANZ’s members at CA ANZ’s AGM is a rare occurrence. In fact, since the creation of CA ANZ following the merger of ICAA and NZICA in 2014, the only time member initiated motions have been proposed to be put to CA ANZ members at AGM are the motions that are the subject of this correspondence. Accordingly, CA ANZ does not have a specific process for disclosing information about individuals who propose motions but instead applies its general privacy processes and procedures relating to the disclosure of personal information. When considering whether to collect, use, or disclose any personal information, CA ANZ also applies its Global Privacy Policy and the relevant privacy laws (such as the APPs in Australia) and considers the extent to which it can collect, use or disclose that personal information. Where relevant, CA ANZ also seeks appropriate external legal advice.

2. Is CA ANZ authorised or required under any law to disclose the names of all the individuals who are involved in the proposition of a motion? Please provide further details.

As mentioned in our Initial Response, CA ANZ is authorised under the Privacy Act 1988 (specifically APP 6) to disclose the names of individuals who are involved in the proposition of a motion.

In addition, CA ANZ is a member of the ASX Corporate Governance Council (Council) which publishes the Corporate Governance Principles and Recommendations that sets out recommended corporate governance practices for entities listed on the ASX that, in the Council’s view, are likely to achieve good governance outcomes and meet the reasonable expectations of most investors in most situations (the Principles). As a founding member, CA ANZ has committed to supporting the Principles and therefore whilst it is not an ASX listed entity, it follows the Principles to the extent relevant to it as a membership organisation. CA ANZ notes that principle 6 recommends (as modified to be applicable to CA ANZ), that members be given the appropriate information and facilities to allow them to exercise their rights as members effectively. The commentary to Recommendation 6.1 then notes the types of information that should be made freely available to members which includes copies of notices of meeting of members and accompanying documents, as well as copies of any documents tabled at meetings. The identity of members proposing a motion that is sought to be tabled as a meeting of members can be such appropriate information.

Further details are set out below in response to question 3.

3. In light of Mr Jaworski's further response, does CA ANZ still consider that the disclosure of his personal information was authorised under APP 6? Please provide details

Yes, CA ANZ considers that it is authorised under the Privacy Act 1988 (Cth) to disclose Mr Jaworski’s personal information. Specifically, APP 6 relevantly permits disclosure of personal information for a secondary purpose (even where an individual has not consented or withdrawn their consent) where:

•    that purpose is related to the primary purpose of collection, or, in the case of sensitive information (which is not the case here as Mr Jaworski’s name is not sensitive information), directly related to the primary purpose; and

•    the individual would reasonably expect the APP entity to use or disclose their personal information for the secondary purpose.

In CA ANZ’s view, disclosing Mr Jaworski’s name is intrinsically related to consideration of the proposed motions at CA ANZ’s 2020 AGM. Mr Jaworski has stated the “primary purpose” of CA ANZ collecting his name and the proposed motions was to enable CA ANZ to satisfy itself that the proposed motions were validly lodged by members and that names have no relevance to the proposed motions. Mr Jaworski also claims he was simply the “postman”. These characterisations are simplistic, omit crucial context, and are flawed. As a matter of fact, Mr Jaworski was more than simply a “postman”, he was the draftsman and instigator of the motions who then actively sought the support of nine other members to support tabling the motions. Mr Jaworski needed this support because under CA ANZ’s By-laws, motions can only be tabled for consideration when they have the support of a minimum of 10 members. For CA ANZ and its members (and for any company and its shareholders), the identity of the persons who propose motions can be important contextual information as it can greatly weigh the consideration of such motions. For example, CA ANZ counts many globally prominent leaders of business and government as part of its membership. Motions proposed by such individuals would be likely to carry significant weight with the CA ANZ Board and CA ANZ’s members and knowing the identity of the proponents of such motions would be therefore be important context for members when exercising their vote. Another example would be where a member prominently and publicly engages with CA ANZ – such as Mr Jaworski has done – and where the CA ANZ Board and the membership would consider the track-record of that member as part of their consideration of the proposed motions. The disclosure of Mr Jaworski’s name and aspects of his public engagement with CA ANZ is, as required by APP 6, therefore clearly related to the primary purpose of collection and relevant to provide CA ANZ members of relevant background to the proposed motions. For the purposes of Principle 6, CA ANZ considers that this history of public engagement by Mr Jaworski is appropriate information for its members to exercise their rights effectively.

In addition, it is of no consequence that Mr Jaworski has stated that he did not expect CA ANZ to disclose his personal information. To reiterate our Initial Response, Mr Jaworski should have reasonably expected CA ANZ to disclose his name and aspects of his public history with CA ANZ. This is because of Mr Jaworski’s public messaging and engagement in relation to CA ANZ such as via submissions to parliamentary enquiries, social media, his website (which does contain his name in many of the documents) and in interviews with journalists. The disclosure of Mr Jaworski as an active proponent of the motions is important and relevant information for members so that they could consider whether CA ANZ’s response to the motions was appropriate in the circumstances and whether or not Mr Jaworski was, in his words, an “unjustified trouble-maker”. CA ANZ chose not to disclose the names of the other nine proponents because after Mr Jaworski sent the proposed motions to CA ANZ, at least two proponents confirmed that they did not wish to pursue the motions. In addition, none of the nine proponents had such a public history with CA ANZ and therefore their names were not considered relevant information for members and not disclosed, as per APP 6.

Finally, we note your concern that it is unclear to the OAIC whether the inclusion of Mr Jaworski's name on CA ANZ's Information Sheet was relevant in the circumstances, in accordance with APP 10.2. APP 10.2 states that, “An APP entity must take such steps (if any) as are reasonable in the circumstances to ensure that the personal information that the entity uses or discloses is, having regard to the purpose of the use or disclosure, accurate, up-to-date, complete and relevant.” For the reasons given above, we consider that the disclosure of Mr Jaworski’s name is accurate, up-to-date, complete, and relevant.

4. Do you have any further information or evidence that is relevant to this complaint?

Ultimately, Mr Jaworksi’s [sic] complaint to the OAIC is that CA ANZ has disclosed his name (along with some history on his public engagement with CA ANZ) on motions that he proposed and supports. No other personal information was disclosed. In the circumstances, the disclosure of Mr Jaworski’s name and his public history with CA ANZ was accurate, relevant and related to the motions proposed by Mr Jaworski, the consideration of those motions by the CA ANZ Board and the subsequent consideration by CA ANZ members of those motions at the AGM.

We note that the OAIC complaint process is not an appropriate forum for Mr Jaworski to further ventilate unsubstantiated criticisms about CA ANZ. Mr Jaworski has adopted an unhelpful approach to this early resolution process, baselessly alleging “obfuscation, deflection and false information” by CA ANZ and further alleges that CA ANZ “resorts to using and discrediting my name to deflect attention from its own actions”. As mentioned above, Mr Jaworski was an active proponent of the relevant motions so it is surprising that Mr Jaworski now seeks to disavow any connection between the motions and his support of them, particularly given Mr Jaworski’s continuous and longstanding public messaging disparaging CA ANZ and its people

38    On 9 August 2021, the applicant wrote to the Commissioner, noting the following, amongst many other things, in relation to the CA ANZ response:

…

The second main reason is that even if the proposed motions had actually been allowed by the CAANZ Board and put to members for their proper consideration and vote, CAANZ has now twice passed on the opportunity to illustrate how members' proper consideration could benefit from the questioned disclosures in relation to any (let alone all) of the proposed motions.

…

Even if CAANZ could somehow overcome those fundamental difficulties with its position, it would still have to demonstrate that I would reasonably expect CAANZ to use or disclose the questioned information. In this regard, CAANZ relies on the undisputed fact that I have made many endeavours, including in the public domain, to pursue accountability for dozens of inexplicable actions such as those covered by the proposed motions. The difficulty CAANZ has not overcome by making mere assertions is that the questioned information disclosed by CAANZ is not directed at a bona-fide consideration of the merits of any issue, but rather clearly aimed at discrediting and denigrating the messenger.

How could it be reasonably expected by any petitioner that their personal details would be used against the purpose of the petition? Surely if that were "reasonable", then similar reasoning would dictate that they would recognise the catch-22 position they were forced into, and thereby not make the petition. …

39    On 23 August 2021, the delegate wrote to the applicant advising him that the Office of the Commissioner had conducted preliminary inquiries into his allegations under s 42 of the Privacy Act. The delegate stated that the OAIC had considered his complaint and formed the view that the act or practice complained about was not an interference with his privacy. The delegate invited comment from the applicant before making a decision. The letter summarised the responses of the applicant and CA ANZ, and set out the reasons for the delegate’s preliminary view under “our view” as follows:

Your allegations

You allege CA ANZ has interfered with your privacy by improperly disclosing your personal information on its website.

Specifically, you say that you made a submission, with nine other members, to the CAANZ board which put forward 38 motions for member vote as part of its forthcoming Annual General Meeting (AGM). You claim that CA ANZ then published your personal information, but not the information of the other nine members who put forward the motions. You complained to CA ANZ who advised that it disclosed your name as you were the primary requisitioning member involved in putting forward the motions.

…

CA ANZ’s response of 6 July 2021

In response to your complaint, CA ANZ has provided the following information:

• From 2017 to date, you have made many allegations of misconduct against CA ANZ’s Board, management and employees

• You have sent emails on a variety of issues where you have taken exception to CAANZ’s actions or reports

• On 23 September 2020, CA ANZ received 38 motions proposed by yourself and nine other members, for consideration by members at the 2020 AGM

• You sought to publicly solicit support for your motions by:

- publishing the 38 special motions on your website

- requisitioning the motions at a public meeting

- emailing CA ANZ members through various social media platforms

- writing to CA ANZ webinar panellists before a webinar took place to accuse CA ANZ of hypocrisy in presenting a seminar on ethics

- attending a CA ANZ Ethics webinar and asking the webinar panellists to discuss the ethical issues outlined in the special motions during question time

• In the lead up to the AGM, a full copy of the Notice Meeting, 38 special motions and an Information Sheet were posted on the CA ANZ website. The Information Sheet disclosed your name. CA ANZ claims that it posted the information sheet after you had posted the 38 motions on your website

• It believes that it is permitted under APP 6 to disclose your name on the basis that:

- the disclosure was relevant to provide CA ANZ members of the relevant background to the special motions

- it would be reasonable for you to expect your name to be disclosed in that instance, as you had uploaded the document containing the 38motions on your website

• It is of the view that the Notice of Meeting and the Information Sheet falls within its governance function, and common corporate practice is for the names of persons submitting motions to be disclosed as part of the governance process

Your responses of 9 and 12 July 2021

In your responses to CA ANZ’s correspondence of 6 July 2021, you have provided the following information:

• You are of the view that CA ANZ’s response contains obfuscation, deflection and false information

• Your complaint is that the proposed motions were lodged by 10 CA ANZ members who all expected that their names remain private. You are concerned that CA ANZ disclosed your name as you had acted as the ‘postman’

• You believe CA ANZ has not provided any reasons why the disclosure of your name was relevant for the consideration of the proposed motion

• You believe CA ANZ’s reference to its privacy policy fails to explain why it did not publish the names of the other 9 members who submitted the proposed motions, and how a practice possibly adopted in relation to motions put to an AGM could be appropriate to motions where they were not provided to the members

• You are concerned that CA ANZ is referring to a document on your website that does not disclose your name or the names of the other 9 members

• You are concerned that CA ANZ is making a false portrayal of you to deflect attention away from the real issues. You wrote to CA ANZ separately on 9 July 2021 to address your concerns about the allegations it has presented about you

• You believe that CA ANZ does not meet the requirements of APP 6 on the basis that you did not consent to the disclosure of your personal information, and that the primary purpose of collection does not directly relate to the way in which CA ANZ disclosed your personal information. You say that the primary purpose of CA ANZ’s collection of your personal information was to enable it to “satisfy itself that the proposed motions were validly lodged by members”. You believe that once CA ANZ established that the motions were validly lodged by ten members, they had no further right to use any of the names

• You believe CA ANZ’s secondary purpose for using your name was to defend itself again the accusations of misconduct levelled at CA ANZ by the ten members who forwarded the motion

CA ANZ’s response of 2 August 2021

In response to the OAIC’s further preliminary inquiries about your matter, CA ANZ has provided the following information:

• It does not have a specific process for disclosing information about individuals who propose motions as individuals proposing motions to be put to CA ANZ’s members at CA ANZ’s AGM is a rare occurrence. However, in this case, it has applied its general privacy processes and procedures relating to the disclosure of personal information

• It is a member of the ASX Corporate Governance Council which publishes the Corporate Governance Principles and Recommendations. CA ANZ advises that Principle 5 of these recommendations suggests that members are given the appropriate information to allow them to effectively exercise their rights as members, which could be in the form of copies of notices of meetings of members and accompanying documents

• It believes that its disclosure of your name is related to the consideration of the proposed motions at CA ANZ’s 2020 AGM. It also holds the view that you drafted and instigated the motion, and you relied on the other 9 members to propose the motions as motions can only be tabled for consideration when they have the support of a minimum of 10 members

• It believes that you should have reasonably expected CA ANZ to disclose your name as it claims that you have had a public history with CA ANZ, which includes public messaging and engagement in relation to CA ANZ

• It chose not to disclose the names of the other 9 individuals as they did not have a public history with the CA ANZ

• It believes that the disclosure of your name and your public history with the CA ANZ was accurate, relevant and related to your proposed motions, the consideration of those motions by the CA ANZ Board and the subsequent consideration by CA ANZ members of those motions at the AGM.

Your responses of 9 and 11 August 2021

In your responses to CA ANZ’s correspondence of 6 August 2021, you have provided the following information:

• You are not satisfied with the response that CA ANZ has provided to address your complaint as you believe it does not provide information about why it continues to include your name and associated remarks on its website

• You have ethical concerns about CA ANZ not disclosing the personal information of the other 9 members, and you consider that the non-historical involvement of the other members is not relevant in this instance

• You are concerned that CA ANZ has not explained why the views of other members involved in proposing motions should be dismissed or de-emphasised because they chose to remain anonymous, as 9 opinions would have greater weight than the consideration of one opinion. Further, you note that 7 petitioners did not withdraw their wish to partake in the petition and their names were not disclosed

• You are concerned that CA ANZ has not provided any reason for why it believes APP 6 holds in this instance. You say that ‘CA ANZ agrees that the primary purpose of collecting the names of the ten motion petitioners is to allow CA ANZ to verify that they are satisfy the procedural requirements set out in the CA ANZ constitutional documents”, and any further use of your information would be for a secondary purpose

• You are concerned that CA ANZ failed to highlight that the proposed motions were quashed and never put to members for consideration, and you consider that these motions would have benefited CA ANZ members

• You are concerned that CA ANZ has made ‘false assertions’ about you in its responses to your complaint and make you appear to be a ‘trouble maker’

• You have requested that CA ANZ supply information to support its comments about you, and if no evidence is available, for CA ANZ to withdraw these comments from its communications with the OAIC and provide you with an apology

• CA ANZ’s email to you of 11 August 2021 states that it ‘rejects your characterisation of its communications with the OAIC and has nothing further to add to its response’. You are concerned that CA ANZ has not addressed your matter.

Our view

Collection of your personal information

APP 6.1 permits entities to use and disclose an individual's personal information when the use or disclosure is done for the same purpose for which the information was collected (known as ‘the primary purpose’), unless:

• an individual has consented to the use or disclosure, or

• an exception under APP 6.2 or APP 6.3 applies.

In another words, entities are not required to obtain the individual's consent to comply with APP 6 if it can demonstrate that they have used or disclosed personal information for the primary purpose of collection or in accordance with an exception under APP 6.2 or APP 6.3.

Purpose of collection

It appears that CA ANZ collected your personal information when you lodged the motions with CA ANZ and requested it to propose these motions to its members at its 2020 AGM.

I consider that CA ANZ collected your personal information for the purpose of administering your proposals for special motions at the 2020 CA ANZ Annual General Meeting (AGM). I characterise this to be the ‘primary purpose of collection’.

Purpose of disclosure In CA ANZ’s response to our inquiries, it has advised that it disclosed your personal information on its Information Sheet for its 2020 AGM for the purpose of providing its members with information about the motions you had proposed. I consider that such a purpose of disclosure was inclusive within the primary purpose of collection, which was to administer your proposals for special motions.

Even if I am incorrect in this regard, I consider that the disclosure was authorised under APP

6.2(a). I consider that the purpose of the disclosure was related to the primary purpose of collection. Further, I also consider that you would reasonably expect CA ANZ to disclose your personal information for such a purpose. I have arrived at this view having regard to the factors below:

• you appear to have coordinated the preparation and lodgement of special motions for the 2020 AGM,

• you publicly sought support for such motions through various channels, including by:

- publishing the motions on your website

- using social media platforms to communicate with members

• CA ANZ was motivated to inform the attendees of the AGM of the background behind the application for special motions

Please also note that ‘reasonably expect’ test is an objective one that has regard to what a reasonable person, who is properly informed, would expect in the circumstances (paragraph 6.20 of the Australian Privacy Principles Guidelines).

In sum, I consider that the disclosure of your personal information, including your full name, was permitted under APP 6 because:

• the disclosure was within the primary purpose of collection, and

• APP 6.2(a) applied to the disclosure

In your email dated 12 July 2021, you say that you did not consent for CA ANZ to disclose your personal information. For the above reasons, I consider that CA ANZ was not required to obtain your consent before doing so.

Quality of the information that CA ANZ disclosed

Under APP 10.2, an entity must take reasonable steps to ensure that the personal information it disclose is, having regard to the purpose of the disclosure, is, amongst other quality considerations, relevant. The reasonable steps that an APP entity should take will depend upon circumstances.

I appreciate your concerns that CA ANZ did not list the names of the other nine members who lodged the proposed motions. On this basis, you appear to question the relevance of your full name.

It is important to note that an entity’s obligation under APP 10.2 is not to ensure the absolute relevance of the personal information that it discloses, but only to take such steps as are reasonable in the circumstances.

In disclosing your personal information by way of revealing your name, I consider that CA ANZ acted in accordance with APP 10.2. I note:

• the purpose of CA ANZ disclosing your personal information was, as noted above, to give information to the members about the context behind the application for special motions,

• in revealing your identity, CA ANZ appears to have regard to the fact that:

- you played a leading role in drafting the motions and gathering support for them

- you posted a copy of the motions on your website

- you solicited support from other members to reach the quorum required for a valid motion

- you engaged in activities using various communication channels to seek support for the special motions

- it had extensive history in dealing with grievance against CA ANZ

By taking into account the above factors in informing its decision to disclose your identity on the Information Sheet, I consider that CA ANZ took reasonable steps to ensure the relevance of your personal information to its attempts to inform the members about the context and details of the motions. Therefore, when considering the information before me, I am of the view that CA ANZ did not contravene APP 10.2 in the circumstances.

Other matters

No evidence that CA ANZ has misled the OAIC

There is no information before me which demonstrates that CA ANZ has misled the OAIC.

Non-privacy matters

In your correspondence with the OAIC, you have mentioned several issues, including

• CA ANZ made defamatory remarks about you

• CA ANZ dismissed the opinions of the other nine members who also partook in the petition of the motions

• CA ANZ quashed your proposed motions and never put them to the members for consideration

The OAIC cannot provide you with assistance in relation to these issues as the Privacy Act does not cover these acts.

…

I therefore intend to exercise the discretion to decline to investigate your complaint under s 41(1)(a).

40    On 3 September 2021, the applicant provided a substantial response to the delegate, repeating a number of the points he had made in previous correspondence:

Proper consideration of Proposed AGM Motions

I believe that it is common ground that the Proposed AGM Motions were quashed by CAANZ.

The CAANZ position is therefore a non-sequitur, being that CAANZ went out of its way to deny members their right to properly consider the Proposed AGM Motions, yet simultaneously asserts to the OAIC that it wanted members to properly consider those Proposed Motions. Surely the CAANZ position is absurd. It is nonsensical for CAANZ to claim that publishing my personal information was justified through wanting members to be properly informed on matters not put to the members' meeting for their proper consideration.

…

In the context of your preliminary view, you treat the Proposed Motions as if they were motions which were properly put for members' consideration and vote. Since they were in fact quashed, they cannot be viewed in the same context as actual motions If the proposed motions were not quashed, I don't think I would have complained about the disclosures of my personal information since even though they are misleading, the context would have been very different and I have confidence that my fellow members would have seen through the CAANZ portrayal if they were allowed to properly consider the motions. The content of the Proposed Motions give the lie to the CAANZ portrayal.

Even if it is pretended that the Proposed AGM Motions had not been quashed, CAANZ has failed to explain how my personal information could have any meaningful relevance to a proper consideration by members. CAANZ declined to show how my personal information could assist member consideration of any of the 38 issues …

…

It would be clear to a reasonable person in possession of the facts before you, that the arguments presented by CAANZ are merely a pretext to cover up an apparent purpose of weaponising my personal information in a self-serving attempt to distract from the issues exposed in the quashed Proposed Motions which are inconvenient to CAANZ. This is especially considering that CAANZ's self-serving positions directly conflict with a fundamental requirement in the accountant's ethical code for impartiality which CAANZ is responsible for enforcing.

In short, the CAANZ tactic is an example of the "shoot-the-messenger" approach sometimes adopted to deny unwanted news and should be factored into any meaningful investigation of a privacy law breach if there are any doubts around the requirements of APP 6 not being satisfied.

My reasonable expectation

It would be perverse if the privacy laws were applied to deem that complainants should reasonably expect that their personal information would be used against them.

The purpose of the privacy law is to prevent such weaponising of personal information, not to facilitate it.

…

In my case, if CAANZ merely published the fact that I was one of the proponents to the requisitions, it would still be a breach of the privacy laws, but such an assertion by itself would be true and not present a serious issue. The problem in this case is that CAANZ has inextricably combined my true personal information with its false assertions in order to falsely portray me as being a lone troublemaker. For Privacy Act purposes, personal information includes the opinions formed and disclosed by CAANZ. CAANZ can only succeed in its false portrayal if it is allowed to make a mockery of the privacy rules.

…

41    On 16 September 2021, the Commissioner closed the file on the Complaint. A letter sent by the delegate to the applicant on that day gave the reasons for the decision to close the file.

I refer to your privacy complaint to the Office of the Australian Information Commissioner (OAIC) about Chartered Accountants Australia New Zealand (CA ANZ), made under s 36 of the Privacy Act 1988 (Cth) (the Privacy Act).

On 23 August 2021, I wrote to you advising of the OAIC’s view that the act or practice complained about is not an interference with your privacy.

At that time, I offered you the opportunity to comment on the OAIC’s view by 6 September 2021. Thank you for your response of 3 September 2021. However, it has not changed the OAIC’s view of the matter.

I therefore decline to investigate your matter under s 41(1)(a) of the Privacy Act. I confirm the reasons for this below.

Our view

As a delegate of the Commissioner, I can only assess this complaint against the relevant provisions of the Privacy Act. I cannot comment on other issues that do not relate to this law, even though they may be tied to your privacy concerns.

No evidence that CA ANZ has misled the OAICI acknowledge your view that CA ANZ has misled the OAIC with respect to the information it has provided about your interactions with it. However, s 65(3) of the Privacy Act requires that ‘a person shall not furnish information or make a statement to the Commissioner knowing that it is false or misleading in a material particular’ and that failure to comply with this section can incur penalties. In practice, this means the OAIC expects that parties to a complaint will deal honestly and fairly with the OAIC and each other.

Unless we have received substantive information or evidence to suggest that a party to a complaint has provided the OAIC with false or misleading information, we accept the information provided at face value. In this instance, your opinion that CA ANZ is providing the OAIC with false information about you, is not evidence or factual information.

In your correspondence of 6 September 2021, you raise the following issues:

• You believe that CA ANZ has provided incorrect information about you that may influence the OAIC’s assessment of your matter

• You believe that CA ANZ disclosed your personal information for a secondary purpose as you consider there is no correlation between CA ANZ’s procedural requirements and its disclosure of only your personal information rather than the information of all the ten proponents of the motions

• You consider that the disclosure of your personal information was not relevant as the motions were quashed

• You are concerned that CA ANZ has defamed you by portraying you as a ‘troublemaker’

Disclosure of your personal information (APP 6)

In your response of 3 September 2021, you essentially disagree with how I have characterised the primary purpose of collection and the purpose of disclosure. You state that the secondary purpose of the disclosure can only arise if it is related to the primary purpose of collection. You add that the disclosure of your personal information was not necessary for CA ANZ to fulfil its procedural steps in processing the motion.

As mentioned in my correspondence of 23 August 2021, I am satisfied that CA ANZ collected your personal information for the purpose of administering your proposals for special motions at the 2020 CA ANZ Annual General Meeting (AGM). I characterise this to be the ‘primary purpose of collection’.

I appreciate your view that the purpose of the disclosure must be construed narrowly.

However, I am satisfied that CA ANZ disclosed your personal information on its Information Sheet for its 2020 AGM for the purpose of providing its members with information about the motions you proposed, that is, within the primary purpose of collection.

Even if this was not the case, I am satisfied that APP 6.2(a) applied to the disclosure. I am satisfied that the purpose of the disclosure was related to the primary purpose of collection, and you would reasonably expect the disclosure for such a purpose (bearing in mind that the ‘reasonably expect’ test is what a reasonable person who is properly informed would expect in the circumstances).

I appreciate your advice that the proposed motions were quashed by CA ANZ. However, this cannot serve as a ground that the disclosure was contrary to APP 6.2(a). What ultimately transpired with respect to the motions, is not relevant to my assessment of whether CA ANZ acted in accordance with APP 6 in disclosing your personal information.

There is also insufficient information or evidence to suggest that CA ANZ disclosed your personal information for any other reason than to administer your proposal for special motions.

Therefore, I am satisfied for the reasons above and in my correspondence of 23 August 2021 that there has not been an interference with your privacy under APP 6.

Quality of the Information that CA ANZ disclosed (APP 10.2)

I am satisfied that CA ANZ disclosed your personal information for the purpose of administering your proposal for special motions to its members. In addition, CA ANZ’s administration of the motions would include the instance where proposed motions have been quashed prior to them being presented to the members for voting.

I am satisfied that in disclosing your personal information, CA ANZ acted in accordance with APP 10.2 on the basis that in revealing your identity, CA ANZ appears to have regard to the fact that:

• you played a leading role in drafting the motions and gathering support for them

• you posted a copy of the motions on your website

• you solicited support from other members to reach the quorum required for a valid motion

• you engaged in activities using various communication channels to seek support for the special motions

• it had extensive history in dealing with grievance against CA ANZ

I am satisfied that CA ANZ took reasonable steps to ensure the relevance of your personal information in its attempts to inform the members about the context and details of the motions, and that CA ANZ did not contravene APP 10.2.

Other matters

Non-privacy matters

In your correspondence with the OAIC, you have mentioned your concern that:

• CA ANZ made defamatory remarks about you

• CA ANZ denied the rights of the members to have a motion properly considered and voted for

As mentioned in my correspondence of 23 August 2021, the OAIC cannot provide you with assistance in relation to issues that are outside the scope of the Privacy Act. As such, I am unable to comment on these matters.

Decision

For the reasons set out above and in my letter of 23 August 2021 (please find attached), I am satisfied under s 41(1)(a) that the act or practice complained about is not an interference with your privacy.

Section 41(1) of the Privacy Act gives the Commissioner the discretion not to investigate a complaint if she is satisfied, among other things, that the act or practice complained about is not an interference with the privacy of an individual.

Therefore, the discretion is enlivened, and I have decided to exercise the discretion under s 41(1) of the Privacy Act to decline to investigate the complaint.

Relevant Statutory Provisions

The Office of the Australian Information Commissioner

42    The Office of the Australian Information Commissioner (OAIC) is established by s 5 of the Australian Information Commissioner Act 2010 (Cth) (the AIC Act), and consists of the information officers and staff mentioned in Part 3 of the Act. Section 10(1) of the AIC Act states that the Commissioner has the following functions:

(a) the information commissioner functions;

(b) the freedom of information functions;

(c) the privacy functions.

43    The “privacy functions” are those set out in s 27 of Division 2 of Part IV of the Privacy Act (see the definition of “privacy functions” in s 9, AIC Act) and include the functions conferred on the Commissioner by or under the Privacy Act.

The Privacy Act

44    The Privacy Act regulates the way in which most Australian government agencies, and certain organisations must handle personal information. In the Privacy Act, “organisation” includes a body corporate, a partnership or any other unincorporated association or a trust, which is not a small business operator, or a registered political party.

45    Since amendments to the Privacy Act commencing on 12 March 2014, the Australian Privacy Principles (APPs) regulate the use, storage and communication of personal information by Australian agencies and organisations covered by the Privacy Act (defined as APP entities in s 6(1) of the Privacy Act).

46    The objects of the Privacy Act are set out in s 2A, which relevantly provides that:

The objects of this Act are:

(a)     to promote the protection of the privacy of individuals; and

(b)     to recognise that the protection of the privacy of individuals is balanced with the interests of entities in carrying out their functions or activities; and

…

(d)     to promote responsible and transparent handling of personal information by entities; and

(e)     to facilitate an efficient credit reporting system while ensuring that the privacy of individuals is respected; and

…

(g)     to provide a means for individuals to complain about an alleged interference with their privacy; and

(h)     to implement Australia’s international obligation in relation to privacy.

47    As these objects make plain, therefore, the Privacy Act does not provide absolute protection to personal information. Rather, s 2A(b) in particular recognises that a balance must be struck between protecting individuals’ privacy, on the one hand, and the discharge by governmental or other entities of their statutory functions and obligations, on the other hand.

48    Section 6A(1) provides that for the purposes of the Privacy Act, an act or practice breaches an APP if, and only if, it is contrary to, or inconsistent with, that principle. It is apparent from the phrase “if, and only if” that s 6A(1) is intended to set out exhaustively the circumstances in which an act or practice may breach an APP.

49    Section 14 provides that the APPs are set out in the clauses of Schedule 1 to the Privacy Act.

50    Section 15 provides that “[a]n APP entity must not do an act, or engage in a practice, that breaches an Australian Privacy Principle.” It was not in issue that the CA ANZ is an APP entity.

51    In turn, s 13 deals with interferences with privacy and relevantly provides that:

(1)     An act or practice of an APP entity is an interference with the privacy of an individual if:

(a)     the act or practice breaches an Australian Privacy Principle in relation to personal information about the individual; or

(b)     the act or practice breaches a registered APP code that binds the entity in relation to personal information about the individual.

52    “Personal information” is defined in s 6(1) of the Privacy Act to mean:

… information or an opinion about an identified individual, or an individual who is reasonably identifiable:

(a)     whether the information or opinion is true or not; and

(b)     whether the information or opinion is recorded in a material form or not.

53    Section 36(1) of the Privacy Act provides:

(1)     An individual may complain to the Commissioner about an act or practice that may be an interference with the privacy of the individual.

54    Section 40(1) [and 40(3)] provides:

(1)     Subject to subsection (1A), the Commissioner shall investigate an act or practice if:

(a)     the act or practice may be an interference with the privacy of an individual; and

(b)     a complaint about the act or practice has been made under section 36.

(1A)     The Commissioner must not investigate a complaint if the complainant did not complain to the respondent before making the complaint to the Commissioner under section 36. However, the Commissioner may decide to investigate the complaint if he or she considers that it was not appropriate for the complainant to complain to the respondent.

…

(3)     This section has effect subject to section 41.

55    Section 41 provides relevantly:

(1)     The Commissioner may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made under section 36 if the Commissioner is satisfied that:

(a)     the act or practice is not an interference with the privacy of an individual; or

56    The Commissioner has the power pursuant to s 42(1) to make preliminary enquiries of the respondent or any other person for the purposes of determining whether the Commissioner may, in their discretion, decide not to investigate the matter.

This Court’s power of review

57    The applicant seeks a review of the decision under the ADJR Act. The application is said to be filed pursuant to r 31.01(1) of the Federal Court Rules 2011 (Cth), which refers to applications under the ADJR Act.

58    Section 5 of the ADJR Act sets out the grounds on which a person who is aggrieved by a decision to which that Act applies may apply to the Court for an order of review. It relevantly provides:

Applications for review of decisions

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds:

(a)     that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)     that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c)     that the person who purported to make the decision did not have jurisdiction to make the decision;

(d)     that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e)     that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)     that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g)     that the decision was induced or affected by fraud;

(h)     that there was no evidence or other material to justify the making of the decision;

(j)     that the decision was otherwise contrary to law.

(2)     The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a)    taking an irrelevant consideration into account in the exercise of a power;

(b)     failing to take a relevant consideration into account in the exercise of a power;

(c)     an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d)     an exercise of a discretionary power in bad faith;

(e)     an exercise of a personal discretionary power at the direction or behest of another person;

(f)     an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

(g)     an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h)     an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(j)     any other exercise of a power in a way that constitutes abuse of the power.

59    By his application, the applicant seeks orders that the decision be set aside, and that the matter be referred back to the Commissioner for further consideration, and that there be no order as to costs.

60    As Greenwood J explained in Jones v Office of the Australian Information Commissioner [2014] FCA 285, the principles to be applied by this Court in reviewing the exercise of an administrative discretion in the context of s 41(1)(a) of the Privacy Act are as follows:

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 (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]).

(Original emphasis)

61    The key principles with respect to decisions made under s 41(1)(a) of the Privacy Act, were also summarised by Perry J in Simjanovska v Department of Human Services [2019] FCA 499:

92    …[T]he Court is limited on judicial review to considering only the legality of the [Commissioner’s] decision based upon the material before [them].

…

109     …is it not for this Court to exercise the discretion in s 41(1) of the Privacy Act for itself so as to determine whether or not the [Commissioner] should investigate the applicant’s complaint: see by analogy Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J) The question of whether or not this Court or the applicant agrees with the [Commissioner’s] decision is not a basis for finding that the decision is invalid or unlawful under the ADJR Act. It follows that the applicant’s strong disagreement with the [Commissioner’s] decision evident throughout the amended originating application and submissions is irrelevant. The only question for this Court is whether the discretion has been exercised by the [Commissioner] according to law.

110    …the discretion vested in the Commissioner by s 41(1) of the Privacy Act not to investigate a complaint is (relevantly) enlivened by the Commissioner subjectively being satisfied that the act or practice the subject of the complaint is not an interference with the privacy of an individual and not upon whether, objectively speaking, there is no such interference…

…

117     At a general level, it is evident that the applicant strongly disagrees with the [Commissioner’s] decision. However, as Greenwood J emphasises in these passages, the question is not whether the applicant or the Court disagrees, even strongly, with the decision under review but rather, whether having regard to the proper construction of the statute, the decision lacks an evident and intelligible justification.

…

122    Furthermore, there is no express limitation upon the stage at which the discretion in s 41(1) can be exercised. To the contrary, subject to the requirements of procedural fairness, the apparent purpose of s 41(1) is to empower the Commissioner to decide not to investigate a complaint or to terminate a complaint at any stage when she or he reaches the requisite state of satisfaction, thereby ensuring that public funds and resources are directed towards resolving potentially meritorious complaints. Thus, for example, there is no reason why it could not be exercised to dispose of a complaint without even calling upon the person the subject of the complaint to respond where the Commissioner is satisfied, for example, that the nature of the allegations are such that they cannot constitute an interference with an individual’s privacy and/or they are frivolous. …

(Emphasis added)

The decision and reasons

62    The delegate’s decision to exercise the statutory discretion under s 41(1)(a) of the Privacy Act not to investigate the applicant’s Complaint is contained in the delegate’s letter of 16 September 2021. The reasons for the decision are to be found in that letter and the earlier letter of 23 August 2021, in which reasons were given for the delegate’s preliminary view not to exercise the discretion, which view did not change in the 16 September 2021 letter.

The Complaint

63    The applicant’s Complaint is at the heart of the matter. It is the Complaint which articulates both the applicant’s personal information the subject of the Complaint, and the act by the CA ANZ which the applicant alleges is in breach of the APP.

64    The applicant is not a lawyer, and at times has a tendency to be overly verbose in his written responses to the delegate and his submissions. However, this should not disentitle the applicant to protection of the privacy of his personal information.

65    Looking at the totality of the Complaint, it is apparent that the applicant regards his personal information the subject of the Complaint as being more than just his identity. This can be discerned from his reference to the CA ANZ “using the unauthorized disclosure of my personal information as some form of a retribution campaign”. When one looks at the Information Sheet, there is considerably more detail about the applicant than just his name, and it is this additional detail, rather than just his name, which might form the basis for the applicant’s assertion as to a “retribution campaign”, or to his information being used in a “defamatory way”.

66    The Information Sheet sets out details of the applicant’s history of correspondence with the CA ANZ, which the applicant submits in later correspondence with the delegate is designed to paint him as a troublemaker. It is the totality of the information about the applicant and the CA ANZ’s opinion of him which the applicant regards as comprising his personal information. It is this information which is the subject of the Complaint. I will refer to this totality of information about the applicant, as the applicant’s total personal information from hereon.

67    The applicant’s repeated reference to the information being used in a “defamatory” way, or to portray him as a trouble maker were brushed aside by the delegate as not being matters which were relevant under the Privacy Act. While of course that is correct, the delegate should have understood those references as the applicant’s attempt to characterise the totality of his personal information used as more than just his full name.

68    This conception of the relevant personal information for the Complaint as comprising more than the applicant’s name is supported by the references in the applicant’s submissions to “the various opinions related to me expressed by CA ANZ”, and his references in the correspondence to the disclosure of the information being “weaponised” to portray him as an “unjustified” and “lone trouble-maker”. It is also supported by the CA ANZ’s references in correspondence to “the history of [the applicant’s] public engagement”.

69    The delegate’s more limited focus on the applicant’s full name as the relevant personal information, the subject of the Complaint appears to stem from the CA ANZ’s first response to the delegate wherein the entire response is addressed to the disclosure of the applicant’s name in the Notice and Information Sheet.

70    Notwithstanding the origin of the mischaracterisation, the delegate has adopted a narrow view of the applicant’s personal information as comprising just his name, in her subsequent correspondence with both the applicant and the CA ANZ. This is clear from the 23 August 2021 preliminary decision and the 16 September 2021 decision. In those decisions the delegate observes that the CA ANZ collected the applicant’s personal information when he lodged the motions with CA ANZ and requested CA ANZ to propose those motions to its members. The delegate considered that CA ANZ collected the applicant’s personal information for the purposes of administering the proposed motions at the 2020 CA ANZ AGM.

71    The only personal information collected by the CA ANZ at the time the proposed motions were filed was the applicant’s name and identity as the lead proposer of the motions. The information relating to the applicant’s history with the CA ANZ had been collected (or accumulated) by the CA ANZ over a lengthy period of previous interaction with the applicant, not at the time the motions were proposed. The collection or accumulation of the information comprising the history of the applicant’s interactions with the CA ANZ was not collected by the CA ANZ for the purpose of administering the proposed motions.

72    Personal information for the purposes of the Privacy Act is defined in s 6(1) as being information or an opinion about an identified individual who is reasonably identifiable. Under the definition, personal information is not restricted to formal identification information, it includes information about an individual, or opinions about an individual. Thus the broader information (including the CA ANZ opinion) regarded by the applicant as his personal information (the applicant’s total personal information) falls within the definition of personal information protectable under the Privacy Act.

Application for judicial review

73    The applicant’s grounds of review are broadly expressed and un-particularised in his Concise Statement and submissions. This is understandable as the applicant is a litigant in person and although a qualified professional accountant with many years’ experience, he does not appear to be legally qualified. The Court is left to discern the error/s of law (if any) and the irrelevant or relevant considerations (if any) on which the applicant relies from a review of the materials filed by him.

74    The crux of the applicant’s application for review, appears to be twofold.

75    First, the delegate has mischaracterised the applicant’s personal information that was used by the CA ANZ in the breach of the APPs, the subject of his Complaint. The delegate characterised the personal information as being his full name, rather than the applicant’s total personal information. As a result of that mischaracterisation, the delegate did not properly consider the applicant’s Complaint and erred in the exercise of her discretion.

76    Second, in coming to her decision, the delegate failed to consider that the CA ANZ board had decided to quash the proposed motions before publishing the Notice and Information Sheet.

77    Consequently, the applicant submits that:

(a)    the delegate’s decision involved an error of law;

(b)    in making her decision, the delegate took into account an irrelevant consideration;

(c)    in making her decision, the delegate failed to take into account a relevant consideration; and

(d)    the delegate’s decision was unreasonable.

78    The respondent’s legal representatives also sought to distil the possible grounds of challenge of the applicant’s application for administrative review. The respondent filed submissions which addressed the many grounds of review which it gleaned from the materials on which the applicant relies. These grounds are:

(a)    the decision involved an error of law: s 5(1)(f) of the ADJR Act;

(b)    that the decision otherwise was contrary to law: s 5(1)(j) of the ADJR Act;

(c)    the delegate took into account irrelevant considerations: s 5(2)(a) of the ADJR Act;

(d)    the delegate failed to take relevant considerations into account: s 5(2)(b) of the ADJR Act;

(e)    the delegate had a lack of regard for the merits of the case: s 5(2)(f) of the ADJR Act; and

(f)    the delegate exercised their power in a way that is so unreasonable, that no reasonable person could have so exercised the power: s 5(2)(g).

79    The respondent has been diligent in identifying potential grounds for review from the applicant’s material. Several of the proposed grounds overlap and I do not propose to deal with each of them individually, as other than the grounds I discuss below, the others are without merit and do not add anything to the applicant’s case for review.

Where decision maker must be satisfied

80    Pursuant to s 41(1)(a) of the Privacy Act, it was open to the delegate, as the decision maker, to decide not to investigate, or not to investigate further, the act or practice the subject of the Complaint if she was satisfied that the act or practice was not an interference with the privacy of an individual.

81    The Privacy Act does not purport to prescribe the matters to which the decision maker must have regard in assessing whether the state of satisfaction is reached. The question whether the decision maker is required to take specific considerations into account is determined by implication from the subject matter, scope and purpose of the Privacy Act. However, if there are errors in the process by which a state of satisfaction is reached, such as by considering extraneous or irrelevant considerations or by excluding relevant considerations, it may be that the state of mind has not been reached in the manner required by the statute. Banks-Smith J observed in Rana v Australian Information Commissioner [2022] FCA 817 at [58]

The requisite state of mind should be one which has been formed logically and rationally upon findings of fact. Further, even if it cannot be detected that an error has occurred in the application of law or consideration of the relevant matters, if the conclusion is one which is wholly unreasonable, it can, nevertheless, be inferred that error has occurred. Such principles are well recognised: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J); and Avon Downs Pty Ltd v Commissioner of Taxation (1949) 78 CLR 353 at 360 (Dixon J).

82    One matter which the decision maker must take into account in making her decision is the scope of the personal information the subject of the Complaint. I consider that the delegate mischaracterised the personal information the subject of the applicant’s Complaint as being just the applicant’s full name and his role as the lead proposer of the 38 proposed motions. That information was the only personal information “collected” at the time that the motions were lodged. That limited personal information was the only personal information considered by the delegate in making her decision not to investigate the applicant’s Complaint.

83    The respondent refers to a handful of examples which it says demonstrates that the delegate understood the applicant’s Complaint related to both the use and disclosure of his name and the comments and opinions about him in the Information Sheet. These examples are limited to descriptions by the delegate of the applicant’s personal history, or summaries of information provided by the applicant, as opposed to consideration by the delegate of the scope of the personal information subject the Complaint.

84    In mischaracterising the applicant’s personal information the subject of the Complaint, the delegate failed to carry out the required statutory task to consider the applicant’s Complaint. That failure amounts to a jurisdictional error.

85    As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]:

…What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.

Costs

86    The applicant seeks an order that the costs be capped to ‘Nil’ for each party because the proceeding is brought in the interests of justice. The applicant essentially seeks an order that the parties bear their own costs of the proceeding. As the successful applicant has requested that no order be made as to costs, I will not make any orders as to costs.

Application for review – personal information limited to applicant’s identity

87    In the event that I am wrong to take a broad view of the personal information the subject of the Complaint, and the relevant personal information is limited only to the applicant’s identity, then I would reject the applicant’s review application for the reasons that I discuss briefly below. The following discussion assumes (contrary to my finding above) that the applicant’s personal information the subject of the Complaint is limited to the information collected by the CA ANZ at the time the motions were filed: the applicant’s full name and that he was the lead proposer of the 38 motions.

(a)    error of law/unreasonableness

88    As the respondent notes, the applicant does not provide particulars as to how the decision involves an error of law. As the applicant goes no further than simply stating the ground, the respondent submits that the case to be met on this ground of review is unclear.

89    The applicant makes submissions as to what he terms “the core legal requirement which he alleges is missing”. That requirement is that the decision be reasonable “both overall and in its key components”.

90    The applicant referred to the observations of the Full Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], [21], [34] and [35]. Relevantly:

35    Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

91    The applicant appears to accept that where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at 654.

92    The applicant submits that the reasons given in support of the decision are “simply absurd” and “untenable”, such that no reasonable decision-maker could have arrived at them.

93    The first reason cited by the applicant is the delegate’s conclusion that she was satisfied that the CA ANZ disclosed the applicant’s personal information for the purpose of providing its members with information about the motions, and that was within the primary purpose of collection of the information.

94    The applicant submits that in characterising the collection of the applicant’s personal information as being for the primary purpose of administering the 38 proposals for special motions at the AGM, the delegate adopted a belief not supported by the facts and gave consideration to irrelevant factors.

95    The applicant also cites the delegate’s assertion that a reasonable person would reasonably expect the applicant’s personal information to be disclosed and used against them. The applicant submits that this is contrary to the main purpose of the Privacy Act administered by the Commissioner and is surely untenable.

96    The applicant clearly disagrees with the delegate’s decision and the reasons given for the decision. However, emphatic disagreement with the decision does not amount to a lack of reason or logic in the relevant sense, and administrative review does not allow the Court to descend into a merits based review.

97    A requirement that a decision be 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; Eshetu at [40] per Gleeson CJ and McHugh J. In this case, the applicant’s emphatic disagreement with the delegate’s reasoning as illogical or unreasonable is a disagreement with the merits of the decision. The delegate’s decision is not unreasonable in the legal sense as required to constitute an error of law for the purposes of s 5(1)(f).

98    The contention that the delegate was, in essence, wrong to be satisfied that the collection and disclosure of the applicant’s personal information was permitted under APP 6.1 and 6.2 is a complaint about the merits of the decision and does not amount to legal error.

99    The delegate’s decision, having regard to the proper construction of the statute, does not lack an evident and intelligible justification. The delegate made substantial preliminary inquiries under s 42 of the Act and received substantial responses from CA ANZ and the applicant, and responses from the applicant on the CA ANZ responses. Following those inquiries and the consideration of the applicant’s and the CA ANZ’s positions, the delegate found that the collection, use and disclosure of the information was not in breach of the APPs and exercised the discretion to decline to investigate the complaint under s 41(1)(a) of the Act.

100    It was open to the delegate on the material before her to form the view that the act or practice was not an interference with the applicant’s privacy, as the disclosure of his personal information was for the primary purpose of collection (APP 6.1), or for a related purpose within the reasonable expectation of the applicant (APP 6.2(a)). In particular, it was open to the respondent to find that the disclosure of the applicant’s personal information (namely, his name and being the lead proposer of the motions) was relevant to provide CA ANZ members within the context of the special motions and why it had refused them.

101    Whilst the delegate’s decision might be said to be one on which reasonable minds might differ, it could not be said to amount to a decision which no reasonable decision maker could reach. As such the delegate’s decision does not amount to an error of law.

(b)    otherwise contrary to law

102    The respondent points to two submissions in the applicant’s submissions filed on 16 March 2022 that appear to be relevant to this ground, namely that:

(a)    there is no basis for extending a ‘primary’ purpose [under APP 6.1] to such an extent that it would effectively allow any disclosure; and

(b)    the respondent asserts that a reasonable person would reasonably expect the applicant’s personal information (ie the unjustified “defamatory” opinions CA ANZ held about me which it disclosed) to be disclosed and used against the applicant. This is contrary to the main purpose of the Privacy Act administered by the respondent.

103    APP 6 creates limits on an APP entity’s use or disclosure of an individual’s personal information. Among others, the APP entity is limited to use or disclosure for a primary purpose.

104    The applicant characterises the primary purpose as the procedural requirement to demonstrate that the special motions had been validly requisitioned by ten members.

105    As above, the delegate considered the applicant’s personal information was collected for the primary purpose of administering the proposals for special motions at the 2020 CA ANZ AGM. The delegate also considered that CA ANZ’s disclosure of the applicant’s personal information was within that primary purpose of collection.

106    Again, the applicant’s submission appears to be premised on his disagreement with the delegate’s characterisation of the primary purpose. This submission essentially asks the Court to come to a different conclusion and impermissibly seeks merits review.

107    The applicant submits that the respondent’s findings, being if the disclosure was not within the primary purpose of collection, then the disclosure was related to the primary purpose and the applicant would reasonably expect CA ANZ to disclose the information, are contrary to the purposes of the Privacy Act.

108    I reject that submission.

109    APP 6.2 permits disclosure of personal information that is not sensitive information, for a secondary purpose that is related to the primary purpose of collection. The applicant’s name and that he was the lead proposer is not sensitive information

(c)    took into account irrelevant considerations

110    The respondent submits that while the ground is unparticularised, one view is that the applicant complains that the “irrelevant, obfuscatory and misleading material provided by CA ANZ” to the respondent ought not to have been considered in making the respondent’s decision.

111    The applicant alleges that the CA ANZ sought to obfuscate, deflect and provide false information to the respondent. On 23 August 2021 and 31 August 2021, the respondent observed there was no evidence or factual information which demonstrated that CA ANZ had misled the respondent or provided false information.

112    The principles with respect to the irrelevant considerations ground of judicial review were summarised by Cavanough J in Love v State of Victoria [2009] VSC 215 (Love) at [191] as follows:

To successfully impugn an administrative decision on the “irrelevant considerations” ground, a challenger must satisfy the Court of three things:

(a)     that the particular consideration was in fact taken into account;

(b)    that the consideration was irrelevant, in the sense that under the applicable statutory provisions the taking into account of the consideration was impermissible; and

(c)     that the applicable statutory provisions have the effect that taking the consideration into account will result in invalidity.

The first of these requirements needs no further discussion. The second requirement is stated by Aronson, Dyer and Groves in their leading Australian work on administrative law [see Aronson, Dyer and Groves, op cit [83] above, at [5.10]] as follows:

Not only must the consideration have been irrelevant, but the Act must have forbidden its consideration.

The correctness of this statement is borne out by ample authority. In Neat Domestic Trading Pty Ltd v AWB Ltd [(2003) 216 CLR 277 at 288 [20]], in reference to the designated role of a certain company (“AWBI”) under Australian statutory export wheat marketing arrangements, Gleeson CJ said (on the express assumption that what was involved was a decision of an administrative character, being an exercise of a discretionary power):

It is to the provisions of the Act that one must look for some warrant for concluding that a particular consideration is obligatory, or available, or extraneous [Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J]. Judicial review is not an invitation to judges to decide what they would consider fair or reasonable if they were given the function conferred upon AWBI. The appellant might genuinely believe that the system itself is unfair. A judge might share that opinion. Nothing follows from that. The question is what, if anything, the Act requires, or permits, or forbids AWBI to take into account in giving effect to its role in the system.

Likewise, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 40], Mason J said:

In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [(1979) 144 CLR 45, at 49–50], adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury [(1937) 56 CLR 746, at 757–758], and Water Conservation and Irrigation Commission (NSW) v Browning [(1947) 74 CLR 492, at 505].

The third requirement is stated by Aronson et al in the following terms (with equal application to the ground of failing to take into account relevant considerations):

Relevancy and its opposite are defined ultimately by the Act which prescribes what must or must not be considered. More than that, for these grounds to apply, the Act must be seen to stipulate that breach of such of its relevancy criteria as are in question is meant to result in invalidity.

(Some citations omitted)

113    This statement of principles was adopted by Kenny J in Sunshine Coast Broadcasters Pty Ltd v The Australian Communications and Media Authority [2012] FCA 1205 at [105].

114    This ground therefore does not relate to whether the information provided by the CA ANZ was false, but whether the delegate’s consideration of information provided by the CA ANZ was impermissible.

115    As s 41 of the Privacy Act does not preclude the respondent from taking into account material provided by the CA ANZ, this ground must fail.

(d) failed to take into account relevant considerations

116    The applicant notes that the respondent “failed to give due weight to the most important fact placed plainly before her”, namely that the special motions were quashed and never put to members for their consideration.

117    I am satisfied the delegate did consider that fact and found that whether or not the motions were quashed is not relevant to the assessment of whether the CA ANZ acted in accordance with APP 6. Her position is noted in the reasons of the 16 September 2021 decision.

118    Regardless, a decision-maker will have failed to consider a relevant consideration only if she was required to consider it on the proper construction of the statute and did not do so. The respondent was not required to consider the fact that the special motion was quashed and never put to members for consideration.

119    As McColl JA has explained in Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [138]:

…the fact that failure to take a relevant consideration into account in the exercise of a power is a ground of judicial review, does not, however, mean “that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account.” The fact that [a party] chooses to refer to particular matters does not convert them into relevant considerations in the administrative law sense from which other consequences might flow. That is determined by reference to the statute.

(e) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case

120    The applicant alleges the respondent had a lack of regard for the merits of the case because the respondent ignored key facts.

121    The respondent submits that this ground appears to rely on s 5(2)(f) of the ADJR Act. That section relates to whether an administrative decision-maker has so closely adhered to a rule or policy that she or he has fettered the exercise of a broad statutory discretion.

122    I accept the respondent’s submission that there is nothing before the Court to support this ground.

(f) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power

123    The applicant contends that it cannot be said to be possible for the respondent’s conclusions to be made logically or rationally on the available material. The respondent suggests that this submission appears to rely on s 5(2)(g) of the ADJR Act.

124    As Bromberg J in Goodwin v Commissioner of Police [2020] FCA 950 observed:

39    Section 5(2)(g) of the ADJR Act adopts the language of what is commonly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) – an exercise of power that is so unreasonable that no reasonable person could have so exercised the power. Whilst that formulation reflected the common law test for legal unreasonableness before the High Court’s judgment in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, the modern formulation for the test of legal unreasonableness is arguably different. The question whether s 5(2)(g) of the ADJR Act continues to align with the modern formulation of legal unreasonableness was the subject of consideration in SZVCP v Cho (2017) 250 FCR 225 at [30]-[40] (Markovic J). Like her Honour, I do not need to examine the scope of s 5(2)(g) of the ADJR Act because whether the Wednesbury formulation or the modern formulation of legal unreasonableness is applicable, legal unreasonableness has not been demonstrated by the applicant in relation to the decision which he seeks to impugn.

125    Similarly, as I observed above I am satisfied that the applicant’s submissions reflect his disagreement with the respondent’s decision, which slips impermissibly into merits review. Legal unreasonableness has not been demonstrated.

Other considerations

126    Many of the issues raised by the applicant, are not properly the subject of judicial review, and are not matters with which the Court can deal with on this application for review. For example:

My personal information has been unlawfully published by CA ANZ in a defamatory way which falsely portrays me in a bad light (eg as a trouble-maker).

I make no findings as to whether the publication of the information is defamatory in the relevant legal sense, as that was not a matter for consideration or determination in this proceeding.

Associate:

Dated:    23 November 2022