Federal Court of Australia

Foley v Australian Information Commissioner [2024] FCA 169

ORDERS

THE COURT ORDERS THAT:

1.    On or before 15 March 2024 each party file and serve minutes of proposed orders to give effect to the reasons of the Court published today.

2.    Costs reserved.

3.    Liberty to apply.

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

REASONS FOR JUDGMENT

BEACH J:

1    The present matter has its genesis in a data breach involving the systems of Singtel Optus Pty Ltd (Optus) which occurred no later than 22 September 2022 and involved the personal information of present and former customers of Optus.

2    The applicant applies for judicial review of a decision of the Australian Information Commissioner (AIC) who decided that she was precluded from investigating the applicant’s representative complaint made against Optus pursuant to s 36(2) of the Privacy Act 1988 (Cth) (the Act) concerning the data breach on the basis that another representative complaint had already been lodged by a different representative complainant concerning the same subject matter and covering substantially the same class members (the preclusion decision).

3    On 4 October 2022 a representative complaint against Optus concerning the data breach was lodged with the Office of the Australian Information Commissioner (OAIC) under ss 36(2) and 38 by Johnson Winter Slattery on behalf of another representative complainant (the JWS complaint) which covered current and former customers of Optus.

4    On 7 October 2022 the applicant lodged with the OAIC through his lawyers Maurice Blackburn a representative complaint against Optus, which also was made on behalf of current and former customers of Optus who alleged that their privacy had been interfered with as a consequence of the data breach (the first MB complaint).

5    On 24 April 2023, the applicant lodged with the OAIC through Maurice Blackburn a further representative complaint against Optus on behalf of the same class members and raising the same matters (the second MB complaint). Why that was considered necessary will be explained later.

6    Both the first MB complaint and the second MB complaint asserted that Optus’ information security and data protection systems were inadequate and by reason of such inadequacies breached the Australian Privacy Principles (APPs) under the Act; see ss 13(1) and 15 and Schedule 1.

7    The present application challenging the preclusion decision, which in form only relates to the second MB complaint, is brought under ss 39B(1) and 39B(1A)(c) of the Judiciary Act 1903 (Cth) and s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). But whatever jurisdiction I am exercising, the principal question is a question of law which turns solely on statutory construction.

8    As Ms Frances Gordon KC for the AIC nicely synthesised, the present challenge to the preclusion decision gives rise to a single question of construction of the Act, being:

Where a representative complaint has been lodged with the Commissioner on behalf of a class of persons in respect of a particular subject matter (the first representative complaint), can a person validly lodge with the Commissioner a second representative complaint on behalf of the same class of persons, and in respect of the same subject matter, as the first representative complaint?

9    Now the applicant says that there is no statutory limit to the number of persons who can lodge complaints on behalf of others having the capacity to complain about the same matter. And if the applicant’s construction of ss 36, 38, 38A, 39, 40 and 41 is accepted, then it follows that the AIC has erred in law in making the preclusion decision.

10    Contrastingly, the AIC says that the text, context and purpose of the relevant statutory provisions are against the applicant’s proposition. More specifically the AIC says that s 39 expressly prohibits the scenario of a class member under one representative complaint having lodged on their behalf a second representative complaint in respect of the same subject matter.

11    In summary, I agree with the applicant’s construction of the relevant statutory provisions. Therefore the preclusion decision involved an error of law and must be set aside.

12    Let me begin with some of the relevant factual background.

Relevant factual background

13    On 22 September 2022, Optus announced that a data breach had resulted in the possible unauthorised access of current and former customers’ information.

14    On 28 September 2022, Maurice Blackburn created a registration portal where current and former customers of Optus could register their interest in participating in a potential legal claim against Optus in relation to the data breach. It is convenient to note at this point that on 7 October 2022, 22,161 current and former Optus customers had registered their interest in participating in a potential legal claim through that portal, which had grown in number to 75,654 as at 25 August 2023.

15    On 4 October 2022, the JWS complaint against Optus was lodged with the OAIC. The JWS complaint was made by an individual not being the applicant, on behalf of current and former Optus customers who had suffered an interference with their privacy as a result of the data breach. The JWS complaint identified questions common to all individuals affected by the data breach as being whether Optus had breached the APPs and whether Optus’s practices, procedures and systems were consistent with the Act. The JWS complaint sought compensation for class members. I have been told that the potential affected number of present and former customers is around 9.8 million. At the time that the JWS complaint was lodged, the applicant before me was a class member under that complaint, although he was not aware of this.

16    On 7 October 2022, the first MB complaint against Optus was lodged with the OAIC. As I have indicated, the first MB complaint was made by the applicant before me and purported to be a representative complaint for and on behalf of any individual whose personal information was exposed as a consequence of the data breach. The common questions were said to be whether the data breach constituted a breach of APP 11 and whether class members were entitled to compensation.

17    On 11 October 2022 the AIC commenced an investigation on her own initiative under s 40(2) concerning the data breach involving the systems of Optus.

18    On 11 January 2023, the OAIC informed Maurice Blackburn that on 4 October 2022 the OAIC had received the JWS complaint and that the applicant before me was a class member in the JWS complaint. The OAIC indicated that s 39 prevented a class member in a representative complaint (the JWS complaint) from subsequently lodging their own complaint (the first MB complaint). Accordingly, the OAIC expressed the view that because the first MB complaint was lodged after the JWS complaint, it could not proceed. The OAIC indicated the AIC’s preliminary view that she intended to accept the JWS complaint as validly made but to decline to consider further the first MB complaint on the basis that it was not validly made by reason of s 39.

19    Between January 2023 and April 2023, communications took place between the OAIC, Maurice Blackburn and JWS the detail of which is unimportant for present purposes.

20    On 19 April 2023, Maurice Blackburn sent an email to the OAIC withdrawing the applicant as a class member from the JWS complaint. This constituted notice in accordance with s 38B(2)(a) of the applicant’s withdrawal from the JWS complaint. But this of course still left the first MB complaint on foot. I should say here that the applicant still considers the first MB complaint to be valid.

21    On 20 April 2023, Slater and Gordon filed a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) against Optus in relation to the data breach, being Peter Julian Robertson & Anor v Singtel Optus Pty Limited / 052 833 208 & Ors (VID 256/2023). I have been case managing that proceeding.

22    On 24 April 2023, the applicant through Maurice Blackburn lodged the second MB complaint against Optus. In their letter, Maurice Blackburn asserted that the applicant was no longer precluded from lodging a complaint under s 39 as he had withdrawn as a class member from the JWS complaint. The second MB complaint made the same complaint and incorporated the same matters as set out in the first MB complaint which was still on foot. It would seem that the second MB complaint was lodged by the applicant in case the first MB complaint was held to be invalid.

23    I should note at this point that it is largely common ground that the JWS complaint, the first MB complaint and the second MB complaint each concern the same subject matter, and have the same class members, save that the applicant has withdrawn from being a class member under the JWS complaint.

24    On 27 July 2023, Maurice Blackburn received a letter from the OAIC in relation to the second MB complaint. The OAIC raised the prospect that the AIC may take the view that pursuant to s 39, class members of one representative complaint (the JWS complaint) could not lodge a complaint, which included having a complaint lodged on their behalf (the second MB complaint), in respect of the same subject matter.

25    On 28 July 2023, Maurice Blackburn sent a letter to the OAIC in which the applicant rejected the view that s 39 operated in the manner suggested by the OAIC. It was said that there was no barrier to the two representative complaints, namely, the JWS complaint and the second MB complaint, being accepted as validly made and heard together. The applicant further submitted that in the event that the AIC was minded to make a decision that only one representative complaint ought to be investigated, then as between the JWS complaint and the second MB complaint, the second MB complaint ought to be the complaint that proceeded.

26    On 25 August 2023, Maurice Blackburn received a letter from the OAIC communicating that the AIC had decided to accept the JWS complaint as validly made but that she was precluded from dealing with the second MB complaint because the AIC considered that it was not validly made under the Act and that the AIC was accordingly unable to proceed to investigate it.

27    The AIC considered that ss 36 to 39 did not permit an individual who has withdrawn from one representative complaint, being the applicant before me, to make a new representative complaint (the second MB complaint) concerning the same subject matter, where the class members would be substantially the same as under the existing representative complaint (the JWS complaint). This is the preclusion decision being challenged before me.

28    The AIC stated:

Sections 36-39 of the Privacy Act do not prevent an individual from withdrawing from a representative complaint and making their own individual complaint in relation to the same subject matter. However, the Commissioner does not consider that ss 36-39 allow for an individual who has withdrawn from one representative complaint to make a new representative complaint concerning the same subject matter, where the class members would be substantially the same as under the existing representative complaint.

We note that your letters of 24 April 2023 and 28 July 2023 point to decisions of the Federal Court of Australia concerning multiple class actions filed against the same respondent. While the Federal Court’s Class Actions Practice Note (GPN-CA) contemplates the conduct of competing class actions, the Privacy Act remains silent on the acceptance or conduct of multiple representative complaints. In our view, this supports the notion that under the Privacy Act the Commissioner may deal with only one representative complaint about the same subject matter at any one time.

In the circumstances here, the Commissioner has decided that the First Complaint [JWS complaint] lodged on 4 October 2022 was validly made. Your client withdrew from the First Complaint on 19 April 2023. Your client then lodged the Further Complaint on 24 April 2023. The Further Complaint was therefore lodged second in time, and for the reasons outlined above, was not validly made under the Privacy Act. Accordingly, the Further Complaint is unable to proceed.

…

29    So, it would seem apparent from the preclusion decision that the AIC has construed s 39 as precluding the AIC from accepting the second MB complaint, indeed by parity of reasoning the first MB complaint, as validly made on the basis of the sole criterion that it was lodged second in time after the JWS complaint, and relatedly has determined to treat the JWS complaint as the only validly made representative complaint on the basis of the sole criterion that it was lodged first in time.

30    Now the applicant’s case as succinctly put by her counsel, Ms Rachel Doyle SC, is that where a validly made representative complaint that satisfies the requirements of ss 36(2) and 38 is lodged, the AIC is obliged by s 40(1) to investigate it other than in the circumstance where the AIC has made a valid decision either under s 38A in relation to a particular representative complaint or under s 41 in relation to a relevant act or practice. It is said that these are the only bases upon which the AIC may validly refuse to investigate or further investigate a representative complaint or an act or practice.

31    According to the applicant, the correct construction of the Act is that it does not prohibit the valid lodgement of more than one representative complaint by different representative complainants about the same subject matter and on behalf of the same class members. It is said that the AIC has erroneously construed the Act as permitting only one representative complaint to be validly lodged and investigated in relation to any interference with privacy.

32    In the alternative, the applicant says that even if the correct construction of the Act is that only one representative complaint may be validly lodged and investigated about an interference with privacy, then the AIC erred in treating the first in time criterion as the sole criterion determinative of the question as to which of the representative complaints ought be treated as validly lodged and investigated by the AIC. Another permutation of this fallback position is that it is said that even if there can only be one validly lodged representative complaint, then the AIC erred in taking into account an irrelevant consideration, namely, the criterion of first in time. In other words, it was said that not only was it not determinative but it was irrelevant. And in yet another permutation, the applicant says that the AIC erred in failing to take into account a relevant consideration when determining which of the two representative complaints ought be treated as validly lodged, namely, that the investigation of the second MB complaint (or the first MB complaint) is relatively speaking more in the best interests of class members as compared with the investigation of the JWS complaint.

33    Let me say now that if the AIC’s statutory construction point is good, then these alternative or fall-back arguments of the applicant must fail. If the first in time criterion on the AIC’s case is in effect enshrined in the statute, then the AIC had no choice but to make the preclusion decision. But if the AIC’s statutory construction point is bad, then the applicant will succeed on the main point and the preclusion decision must be treated as being invalid. But that being so, the applicant’s alternative or fall-back arguments either do not arise or do not need to be considered.

34    Let me turn then to the statutory provisions.

The relevant statutory provisions

35    It is not in doubt that a statutory provision is to be construed consistently with the language, context and purpose of the whole of the statute. The meaning of a provision is to be determined by reference to the language of the statute viewed as a whole.

36    Moreover, extrinsic material, including the legislative history and relevant explanatory memoranda may be considered to the extent that they are capable of assisting in the ascertainment of the meaning of the provision sought to be construed (s 15AB of the Acts Interpretation Act 1901 (Cth)).

37    In H Lundbeck A/S v Commissioner of Patents (2017) 249 FCR 41 at [83] to [86] I said:

As to the applicable principles of construction, the question of construction must begin and end with the statutory text. But the text must be considered in context, which context may be illuminated not just by other relevant legislative provisions in the Act in question, but also by the legislative history and other extrinsic materials. Context has utility if and to the extent that it assists to ascertain the meaning of the text by, for example, illuminating the mischief that the statute was intended to remedy. Further, integral to the task of contextual construction is the objective discernment of statutory purpose.

The parties have referred to a plethora of extrinsic material. But such material cannot displace the clear meaning of the text, assuming that the latter can be discerned. Moreover, it is desirable to exhaust the application of the ordinary rules of statutory construction as applied to the text, before one has recourse to the extrinsic material.

Further, it should also be noted that Alphapharm at [42] per Crennan, Bell and Gageler JJ stated that:

The pre-existing law and the legislative history should not deflect the Court from its duty to resolve an issue of statutory construction, which is a text-based activity.

Further, and relevantly to the issues with which I need to deal, a harmonious construction which accords to each statutory provision a function that can be reconciled with any apparently inconsistent statutory provision is a necessary objective of the task of statutory construction to the extent that it is feasible. This may entail adjusting the meaning of competing provisions to “reveal” a statutory meaning that differs from the grammatical meaning. It may entail considering the hierarchy of statutory provisions within the one instrument so as to ascertain the leading provision and the provision which must give way. Questions of harmony and how it may be achieved may be illuminated by considerations of context.

38    Further, as to statutory provisions that are remedial or beneficial in nature, which the provisions of Part V of the Act with which I am concerned clearly are, they should be construed liberally rather than literally. In Elliott-Carde v McDonald’s Australia Ltd [2023] FCAFC 162 at [60] to [62] I said:

Clearly, the relevant aspects of both statutory regimes concerning the standing question have a remedial purpose and should be construed broadly, not narrowly. A liberal rather than literal construction should be taken to remedial legislation.

In IW v The City of Perth (1997) 191 CLR 1, Brennan CJ and McHugh J said (at 12):

The injunction contained in s 18 of the Interpretation Act is reinforced by the rule of construction that beneficial and remedial legislation, like the Act, is to be given a liberal construction. It is to be given “a fair, large and liberal” interpretation rather than one which is “literal or technical”. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.

(footnotes omitted)

Gummow J said (at 39):

There is ample authority that remedial legislation, such as that found here, is to be accorded “a fair, large and liberal” interpretation rather than one which is “literal or technical”. These were the phrases used by Thorp J in Coburn v Human Rights Commission. They are of importance in this case, particularly in construing the term “services” as it appears in the statutory phrases “a person who … provides goods or services” and “by refusing to provide the other person with those goods or services” in s 66K of the Act. Nevertheless, as will appear, the legislation must be read as a whole and such a term must be construed in the context in which it appears.

(footnotes omitted)

39    Let me now identify the relevant statutory provisions including those that provide context for the key provisions that need to be construed.

Sections 2A, 27 and 29

40    Section 2A stipulates the objects of the Act to include:

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

…

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

41    Section 2A was inserted by Schedule 4, s 1 of the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) (the 2012 amending legislation).

42    So, the meaning of ss 36 to 41 regarding the making of a representative complaint contained in Part V and the AIC’s statutory obligation to investigate such a complaint must be interpreted consistently with the purpose inter-alia of providing a means for individuals to complain about an alleged interference with their privacy.

43    Moreover, under s 29 the AIC has a statutory obligation to have regard to the objects and purpose of the Act in discharging her functions under s 27 and in exercising her powers to deal with and investigate complaints including to promote inter-alia the s 2A(g) object.

Section 6

44    Section 6(1) provides definitions of certain terms and phrases including relevantly:

representative complaint means a complaint where the persons on whose behalf the complaint was made include persons other than the complainant, but does not include a complaint that the Commissioner has determined should no longer be continued as a representative complaint.

45    The definition of “representative complaint” was inserted by s 7(a) of the Law and Justice Legislation Amendment Act 1993 (Cth) (the 1993 amending legislation), which replaced the former definition of “representative complaint” which provided that “representative complaint means a complaint under subsection 36(2)”.

46    The only positive requirement, subject to the matters in ss 36(2) and 38, imposed by the definition of a “representative complaint” is that the complaint is brought by a person on behalf of persons in addition to the complainant; I do not need to say anything about the negative stipulation here.

47    Further, “class member” is also defined in s 6(1) to mean “in relation to a representative complaint … any of the persons on whose behalf the complaint was lodged, but does not include a person who has withdrawn under section 38B”.

48    So, I agree with the applicant that there is no indication in the text that the legislature intended that the validity of a representative complaint required anything more than satisfaction of the factual requirement that the representative complaint be brought by a representative complainant on behalf of other persons similarly affected by the relevant interference with privacy which meets the s 6(1) definition and satisfies ss 36(2) and 38.

Sections 13 to 15

49    Sections 13 to 15 deal with what constitutes interferences with privacy, the APPs and the obligation to comply with the APPs. They provide as follows:

13 Interferences with privacy

APP entities

(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.

    …

13F Act or practice not covered by section 13 is not an interference with privacy

An act or practice that is not covered by section 13 is not an interference with the privacy of an individual.

    …

14 Australian Privacy Principles

(1)    The Australian Privacy Principles are set out in the clauses of Schedule 1.

(2)    A reference in any Act to an Australian Privacy Principle by a number is a reference to the Australian Privacy Principle with that number.

15 APP entities must comply with Australian Privacy Principles

An APP entity must not do an act, or engage in a practice, that breaches an Australian Privacy Principle.

50    For completeness, s 6(1) defines “interference with the privacy of an individual” in terms of the meaning given by ss 13 to 13F. Further, there is no doubt that Optus is an APP entity as it is an “organisation” (see ss 6(1) and 6C).

51    Let me turn to the question of investigations dealt with in Part V, Div 1A.

Section 36A

52    Section 36A provides a guide to Part V. It provides:

In general, this Part deals with complaints and investigations about acts or practices that may be an interference with the privacy of an individual.

An individual may complain to the Commissioner about an act or practice that may be an interference with the privacy of the individual. If a complaint is made, the Commissioner is required to investigate the act or practice except in certain circumstances.

The Commissioner may also, on his or her own initiative, investigate an act or practice that may be an interference with the privacy of an individual or a breach of Australian Privacy Principle 1.

…

53    This simplified outline confirms that the AIC is required to investigate the act or practice except in certain circumstances, and so supports the notion that unless certain prescribed statutory criteria exist, the AIC is obliged to investigate a validly made representative complaint. Given that the simplified outline is part of the Act, s 13(3) of the Acts Interpretation Act not excluding it, it may assist in construing any particular provision, including assisting in resolving any ambiguity.

Section 36

54    Section 36 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.

(2)    In the case of an act or practice that may be an interference with the privacy of 2 or more individuals, any one of those individuals may make a complaint under subsection (1) on behalf of all of the individuals.

(2A)     In the case of a representative complaint, this section has effect subject to section 38.

(3)    A complaint shall be in writing.

(4)    It is the duty of members of the staff of the Commissioner to provide appropriate assistance to a person who:

(a)    wishes to make a complaint; and

(b)    requires assistance to formulate the complaint.

(5)    The complaint shall specify the respondent to the complaint.

…

(7)    In the case of a complaint about an act or practice of an organisation, the organisation is the respondent.

…

55    Section 36(1) permits the making of an individual complaint about an act or practice that may be an interference with the privacy of the individual.

56    But under s 36(2) “[i]n the case of an act or practice that may be an interference with the privacy of 2 or more individuals, any one of those individuals may make a complaint under subsection (1) on behalf of all of the individuals”. So, a representative complaint is instituted under s 36(2). Subject to s 38, the statutory preconditions for the making of a valid representative complaint are, first, that there must exist an act or practice that may be an interference with privacy and, second, that that act or practice interfered with the privacy of two or more individuals.

57    Once those statutory preconditions are satisfied “any one of those individuals may make a complaint”. It is significant that the section refers to “any one of those individuals”. I agree with the applicant that the phrase “any one” is not to be construed as meaning only one or that only the first person to make the representative complaint may do so. Any one of the people who have had their privacy interfered with by an act or practice of an APP entity which contravenes the APP entity’s obligation under s 15 is entitled by legislative grant to make a representative complaint on behalf of other persons whose privacy has been interfered with by the same or similar act or practice of the APP entity.

58    There is nothing in the text of s 36(2) that suggests that where there may have been an interference with the privacy of numerous persons, only one of those affected persons may bring a representative complaint. Further, there is nothing in s 36(2) which states that once one validly constituted representative complaint has been lodged, a later representative complaint cannot also be lodged.

59    Subject to s 38, the requirements for validity contained in s 36, assuming that the description in s 36(2) is met, are only that a representative complaint must be in writing (s 36(3)), it must specify the respondent (s 36(5)) and the respondent must have the relevant identity (s 36(7) in our case). Any additional statutory preconditions to the lodging of a representative complaint under s 36(2) are to be found in s 38. Section 36(2A) states that in the case of a representative complaint, s 36 has effect subject to s 38.

60    Now the Act has always made provision for an individual’s complaint about an act or practice to be grouped with the complaints of all the other individuals affected by the act or practice. But the way of dealing with representative complaints has been amended twice.

61    As enacted, ss 36(1) and (2) were in much the same form as the present provisions, but s 39 provided that “[n]othing in this Part prevents a person from making a complaint under subsection 36(1) about an act or practice about which a representative complaint has been made”.

62    But s 11 of the 1993 amending legislation amended s 39 so that it read “[a] person who is a class member for a representative complaint is not entitled to lodge a complaint in respect of the same subject matter”.

Section 38

63    Once the requirements of s 36 are met, s 38 provides further statutory criteria that must be satisfied for a representative complaint to be validly lodged.

64    Section 38 provides:

(1)    A representative complaint may be lodged under section 36 only if:

(a)     the class members have complaints against the same person or entity; and

(b)    all the complaints are in respect of, or arise out of, the same, similar or related circumstances; and

(c)    all the complaints give rise to a substantial common issue of law or fact.

(2)    A representative complaint made under section 36 must:

(a)    describe or otherwise identify the class members; and

(b)    specify the nature of the complaints made on behalf of the class members; and

(c)    specify the nature of the relief sought; and

(d)    specify the questions of law or fact that are common to the complaints of the class members.

In describing or otherwise identifying the class members, it is not necessary to name them or specify how many there are.

(3)    A representative complaint may be lodged without the consent of class members.

65    Now ss 38(1)(a) to (c) are, save for some differences in threshold requirements and minor differences between terminology such as “claims” and “complaints”, in similar terms to ss 33C(1)(a) to (c) of the FCA Act. Those similarities were not unintentional.

66    The explanatory memorandum to the Law and Justice Legislation Amendment Bill 1993 (Cth) stated (at p 8) the following regarding the proposed amendments to Part V of the Act that were then made by the 1993 amending legislation:

Sections 38 and 39 of the Act are to be repealed by this clause and replaced by new provisions governing the lodgement and determination of representative complaints. The new provisions draw, where appropriate, on the representative proceedings provisions in Part IVA of the Federal Court of Australia Act 1976 which came into force in 1992 and will bring the Privacy Act into line with amendments made to the representative complaints provisions of the Disability Discrimination Act, Racial Discrimination Act and Sex Discrimination Act in 1992 as part of the reform of the determination procedures under those Acts.

67    A representative complaint may be lodged only if the class members have complaints against the same person or entity. Further, the complaints of an interference with the privacy of the class members have to be “in respect of, or arise out of, the same, similar or related circumstances”. Further, all the complaints that satisfy s 38(1)(b) have to give rise to a “substantial common issue of law or fact.” Further, s 38(2) provides that a representative complaint under s 36 must include the matters in s 38(2)(a) to (d).

68    So, a purported representative complaint that either did not satisfy one or more of the s 38(1) requirements or failed to describe or specify the matters in s 38(2) may not be capable of being validly lodged.

69    What is interesting to note at this point is that there is nothing in s 38 which confers on the AIC some other power to refuse to treat complaints as validly lodged. Undoubtedly the AIC possesses ancillary power in relation to determining the validity of representative complaints as being ones fit for lodgement in the sense of considering whether the express statutory preconditions in ss 36 and 38 have been met.

70    Further, there is nothing in the text of ss 36 and 38 which would indicate that they are to be construed as relieving the AIC from exercising her mandatory obligation under s 40 to investigate complaints which have been validly lodged when more than one representative complaint which meets the requirements of s 38 has been validly lodged, unless of course s 38A or s 41 apply.

71    Let me move to the next provision.

Section 38A

72    Section 38A provides:

(1)    The Commissioner may, on application by the respondent or on his or her own initiative, determine that a complaint should no longer continue as a representative complaint.

(2)    The Commissioner may only make such a determination if the Commissioner is satisfied that it is in the interests of justice to do so for any of the following reasons:

(a)    the costs that would be incurred if the complaint were to continue as a representative complaint are likely to exceed the costs that would be incurred if each class member lodged a separate complaint;

(b)    the representative complaint will not provide an efficient and effective means of dealing with the complaints of the class members;

(c)    the complaint was not brought in good faith as a representative complaint;

(d)    it is otherwise inappropriate that the complaints be pursued by means of a representative complaint.

(3)    If the Commissioner makes such a determination:

(a)    the complaint may be continued as a complaint by the complainant on his or her own behalf against the respondent; and

(b)    on the application of a person who was a class member for the purposes of the former representative complaint, the Commissioner may join that person as a complainant to the complaint as continued under paragraph (a).

73    Section 38A provides a mechanism by which the AIC may determine that a complaint should no longer continue as a representative complaint. But such a determination is required to be predicated on the AIC being satisfied that it is in the interests of justice to so determine in respect of a particular representative complaint because of one or more of the reasons stipulated in s 38A(2).

74    Sections 38A(1) and (2) must also be read together with s 38A(3)(a), which permits an individual, who was prior to a decision made under s 38A(1) the complainant in the former representative complaint, to continue their complaint on an individual basis. Further, s 38(3)(b) permits a class member from the former representative complaint to join that individual complaint.

75    Now the preclusion decision did not involve any exercise of power under s 38A. The language adopted in the preclusion decision was that the AIC was “precluded from dealing with the [second MB complaint].” The reference to preclusion indicates that the AIC could not have reached the requisite state of satisfaction that it was in the interests of justice for the representative complaint to not continue as a representative complaint for one or more of the reasons enumerated in s 38A(2). She did not undertake that consideration.

Section 38B

76    Section 38B provides:

38B Additional rules applying to the determination of representative complaints

(1)    The Commissioner may, on application by a class member, replace the complainant with another class member, where it appears to the Commissioner that the complainant is not able adequately to represent the interests of the class members.

(2)    A class member may, by notice in writing to the Commissioner, withdraw from a representative complaint:

(a)    if the complaint was lodged without the consent of the member—at any time; or

(b)    otherwise—at any time before the Commissioner begins to hold an inquiry into the complaint.

Note: If a class member withdraws from a representative complaint that relates to a matter, the former member may make a complaint under section 36 that relates to the matter.

(3)    The Commissioner may at any stage direct that notice of any matter be given to a class member or class members.

77    This section makes provision for class members to withdraw from representative complaints and then make an individual complaint. The section is silent on the question of whether a former class member may lodge another representative complaint.

78    The 2012 amending legislation introduced the present form of s 38B(2)(a) and the note at the end of s 38B(2) to ensure that a person could withdraw from a representative complaint at any time where the complaint had been lodged without their consent and to make clear that a class member who withdraws from a representative complaint may then go on to make an individual complaint under s 36 in relation to the same matter as the representative complaint (explanatory memorandum, Privacy Amendment (Enhancing Privacy Protection) Bill 2012 (Cth), items 75 and 76, pp 236 and 237). The amendments were prompted by a concern expressed by the Australian Law Reform Commission that the ability to lodge a representative complaint without the knowledge of any of the class members meant that “an individual’s capacity to make an individual complaint could be removed without his or her knowledge or agreement, by virtue of a combination of ss 38(3) and 39 of the Privacy Act” (Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice (Report No 108, May 2008) vol 2, 1637 and 1638).

79    So, s 38B(2) was amended to make it clear that a class member covered by a representative complaint may withdraw from that complaint and lodge an individual complaint.

Section 38C

80    Section 38C provides:

38C Amendment of representative complaints

If the Commissioner is satisfied that a complaint could be dealt with as a representative complaint if the class of persons on whose behalf the complaint is lodged is increased, reduced or otherwise altered, the Commissioner may amend the complaint so that the complaint can be dealt with as a representative complaint.

Section 39

81    Section 39 provides:

39 Class member for representative complaint not entitled to lodge individual complaint

A person who is a class member for a representative complaint is not entitled to lodge a complaint in respect of the same subject matter.

82    By enacting s 39, the legislature intended to deal with the perceived vice of an individual class member also lodging an individual complaint under s 36 where a representative complaint had already been lodged on their behalf.

83    First, the heading to s 39 is entitled “[c]lass member for representative complaint not entitled to lodge individual complaint”. The heading may be used to assist in the construction of s 39.

84    Second, when regard is had to the use of the phrase “representative complaint” followed by the singular “complaint” in relation to the right of a class member to lodge a complaint in respect of the same subject matter as the representative complaint, it is clear that it was intended to prevent individual complaints being lodged where the individual complainant was also represented as a class member through a representative complaint.

85    Third, and consistent with the “opt-out” nature of the representative complaint procedure in the Act (ss 38(3) and s 38B(2)), a person who does not wish to continue as a class member in the representative complaint may opt out of the representative complaint (s 38B(2)(a)) and commence a complaint about the same subject matter as the representative complaint under s 36. The note to s 38B(2) provides that “[i]f a class member withdraws from a representative complaint [under s 38B(2)(a) or (b)] that relates to a matter, the former member may make a complaint under section 36 that relates to the matter.” The note is part of the Act which must be construed as a whole.

86    Construing ss 38B and 39 together, the Act provides a mechanism by which a class member may opt out of a representative complaint to pursue their own individual complaint.

87    Fourth, a consideration of the legislative history confirms that the introduction of the current form of s 39 was intended to cure the mischief of a plethora of individual complaints being commenced by the same persons whose interference with privacy was already the subject of a representative complaint.

88    In this regard, s 39 as originally promulgated provided that “[n]othing in this Part prevents a person from making a complaint under subsection 36(1) about an act or practice about which a representative complaint has been made.” The Act commenced on 1 January 1989. Section 36(1) of the original enactment, allowing for some amendments which are irrelevant for present purposes, provided the same complaint mechanism as the current s 36(1), which permits an individual complaint to be made about an interference with a person’s privacy.

89    But on 18 January 1994, the current formulation of s 39 was introduced by s 11 of the 1993 amending legislation. The explanatory memorandum to the cognate Bill stated (at p 9):

Section 39 (individual complaints not precluded by representative complaints) is to be repealed and replaced by a new provision which will, in effect, prevent a person who is a class member in a representative complaint from lodging an individual complaint unless that person withdraws from the representative complaint.

90    So, the new form of s 39 was not introduced to deal with duelling representative complaints.

91    The legislature did not intend s 39 to operate as a bar to the lodgement of another representative complaint. Rather, it was intended to cure a mischief created by the initial enactment which permitted both representative complaints and individual complaints lodged by persons who were also class members about the same subject matter to be on foot at the same time.

92    Further, as the applicant points out, the current version of s 39 was introduced at the same time as s 38 was amended in order to draw upon, where appropriate, the representative proceedings provisions in Part IVA of the FCA Act (p 8 of the explanatory memorandum). Part IVA of course allows for the co-existence of multiple representative actions concerning the same subject matter and over-lapping class membership against the same respondent. It does not appear that the legislature turned its mind to and intended any different result in relation to the analogous situation of multiple representative complaints under the Act.

93    There is a good argument for saying that had the legislature intended ss 36(2) and 38 to operate as prohibiting the lodgement of more than one representative complaint, it would have said so. This is particularly so where the legislature had specifically considered the types of complaints which ought to be prevented from being made where a representative complaint had been lodged and, in that context, determined only to prohibit the lodgement of additional individual complaints by those already covered by a representative complaint.

Sections 40 and 41

94    Section 40(1) imposes a mandatory obligation on the AIC to investigate a representative complaint made under s 36 unless at least one of the matters in s 38A or s 41 operate to relieve the AIC from investigating that complaint.

95    Section 40 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.

…

(2)    The Commissioner may, on the Commissioner’s own initiative, investigate an act or practice if:

(a)    the act or practice may be an interference with the privacy of an individual or a breach of Australian Privacy Principle 1; and

(b)    the Commissioner thinks it is desirable that the act or practice be investigated.

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

96    So, the AIC must investigate a representative complaint if the act or practice the subject of the investigation may be an interference with the privacy of an individual, and the complaint has been made under s 36 and meets the requirements of s 38. Now the satisfaction of the requirement in s 40(1)(a) is uncontroversial in the present context. Let me turn to s 40(1)(b).

97    Both the first MB complaint and the second MB complaint the subject of the preclusion decision would seem to satisfy s 40(1)(b). So the only basis upon which the AIC could properly decide not to investigate is that at least one of the circumstances in s 41 exists.

98    Section 41 provides:

(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

[There is no (b)]

(c)    the complaint was made more than 12 months after the complainant became aware of the act or practice; or

(d)    the complaint is frivolous, vexatious, misconceived, lacking in substance or not made in good faith; or

(da)    an investigation, or further investigation, of the act or practice is not warranted having regard to all the circumstances; or

(db)    the complainant has not responded, within the period specified by the Commissioner, to a request for information in relation to the complaint; or

(dc)    the act or practice is being dealt with by a recognised external dispute resolution scheme; or

(dd    the act or practice would be more effectively or appropriately dealt with by a recognised external dispute resolution scheme; or

(e)    the act or practice is the subject of an application under another Commonwealth law, or a State or Territory law, and the subject matterof the complaint has been, or is being, dealt with adequately under that law; or

(f)    another Commonwealth law, or a State or Territory law, provides a more appropriate remedy for the act or practice that is the subject of the complaint.

(1A)     The Commissioner must not investigate, or investigate further, an act or practice about which a complaint has been made under section 36 if the Commissioner is satisfied that the complainant has withdrawn the complaint

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

(a)    the respondent has dealt, or is dealing, adequately with the complaint; or

(b)     the respondent has not yet had an adequate opportunity to deal with the complaint.

…

99    Now s 41(1) refers to the AIC deciding not to investigate or not to investigate further an act or practice about which a complaint has been made if satisfied of certain matters. Principally the section’s focus is on the “act or practice” of the respondent, namely, Optus, rather than on the complaint; see ss 41(1)(a), (da), (dc), (dd), (e) and (f).

100    Now there are other aspects of s 41(1) that focus on the complaint; see ss 41(1)(c), (d) and (db). But none of these are relevant or, at least, have not been invoked.

101    Further, as to the potential future application of the criterion in s 41(1)(da), the AIC has also commenced her own initiated investigation into the data breach by Optus under s 40(2).

102    Now this is all a round about way of making two points. First, the AIC has not sought to exercise any power under s 41(1). Second and in any event, nothing justifying the first in time criterion could be sourced to s 41(1). The existence and terms of s 41(1) do not support the preclusion decision. If anything they point against it. Section 41(1) in one sense codifies the circumstances under which the AIC can choose not to investigate a representative complaint, assuming that there has been no exercise of power under s 38A. And nothing contained therein supports a first in time criterion.

103    Finally and for completeness, there is one interpretation of s 41(1)(da) that may implicitly permit of a consideration of a first in time criterion. If the JWS complaint is being investigated, could it be said that another investigation under the second MB complaint is not warranted? But that is more saying that there should be one investigation and not two investigations on foot rather than strictly a first in time criterion as such. In other words, if only one investigation was warranted, then the AIC may have allowed the second MB complaint to be investigated and not the JWS complaint. So, s 41(1)(da) may on one view permit avoidance of duplication, but that does not necessarily entail a first in time criterion as such. But the more likely interpretation of s 41(1)(da) is that it is not a basis for eliminating duplication between complaints, but rather is looking only at the substantive question of whether the relevant act or practice should be investigated or further investigated in substance. But at this stage I will not say anything further concerning s 41 as the parties have not put detailed submissions thereon. And more importantly, the AIC has not purported to exercise any statutory power thereunder.

104    Likewise I have been a little coy about s 38A as the parties have not put detailed submissions thereon. And again, the AIC has not purported to exercise any statutory power thereunder. But there is an argument for saying that s 38A(2)(b) or (d) could be used to eliminate duplication between competing representative complaints. But on that front one has to be careful. Let me explain.

105    The terms of s 38A of the Act have their analogue in part with s 33N of the FCA Act. Section 38A(2)(b) is comparable with s 33N(1)(c). Section 38A(2)(d) is comparable with s 33N(1)(d).

106    In McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd [2017] FCA 947 I discussed s 33N in the following terms (at [16] to [19]):

Section 33N(1) of the Act relevantly provides as follows:

(1)     The Court may, on application by the respondent or of its own motion, order that a proceeding no longer continue under this Part where it is satisfied that it is in the interests of justice to do so because:

(a)     the costs that would be incurred if the proceeding were to continue as a representative proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding; or

(b)     all the relief sought can be obtained by means of a proceeding other than a representative proceeding under this Part; or

(c)    the representative proceeding will not provide an efficient and effective means of dealing with the claims of group members; or

(d)     it is otherwise inappropriate that the claims be pursued by means of a representative proceeding.

Before a s 33N(1) order can be made, it must be in the interests of justice to do so because one or more of the conditions in sub-sections (a) to (d) is satisfied.

Generally speaking, s 33N(1) requires consideration of the comparator of whether it is in the interests of justice that the proceeding be determined in numerous non-representative proceedings. One compares how the factors specified in ss 33N(1)(a) to 33N(1)(d) would apply to hypothetical non-representative proceedings. Such comparison is expressed in ss 33N(1)(a) and 33N(1)(b) and implied by ss 33N(1)(c) and 33N(1)(d). The implicit focus in s 33N(1)(c) is on the commonality of issues and whether the representative proceedings are efficient and effective to resolve the common issues, rather than resolution by way of individual proceedings. Section 33N(1)(d) is concerned with whether representative proceedings are an appropriate vehicle to pursue the claims. Generally, the focus of ss 33N(1)(c) and 33N(1)(d) is on the efficiency or appropriateness of the group members’ claims being pursued in representative proceedings.

It seems to me that the requirements of s 33N(1) are not satisfied in relation to either the McKay proceedings or the Basil proceedings. Sections 33N(1)(a) and 33N(1)(b) are not satisfied if each of the proceedings is compared to hypothetical non-representative proceedings and regard is had to the interests of justice. Similarly, s 33N(1)(c) is not satisfied. Each of the proceedings, by comparison to hypothetical individual actions, is an efficient and effective process to resolve common issues. Section 33N(1)(c) does not involve a comparison between the representative proceedings and another identical or hypothetical set of representative proceedings. The efficiencies referred to in s 33N(1)(c) are focused upon whether the representative proceedings are an efficient mechanism to resolve the claims and common issues, which requires considering the representative applicant’s case and a comparison between the representative proceedings and the hypothetical non-representative proceedings. The inquiry is not whether the common issues might be more efficiently resolved by way of some other representative proceedings. But I accept that the matter is not free from doubt. Section 33N(1)(c) uses the definite article “the representive proceeding[s]” rather than the indefinite article (cf ss 33N(1)(a) 33N(1)(b) and 33N(1)(d)), so that it is open to argue that it could be satisfied if another set of representative proceedings were available and could efficiently deal with group members’ claims made in the hypothesised to be “declassed” proceedings. In other words, another available representative proceedings may make it less efficient and less effective to pursue the proposed to be “declassed” proceedings. But I would note that s 33N(1)(c) is not focused on relative efficiency and effectiveness but rather is expressed in more absolute terms. Generally, the better construction of s 33N(1)(c) is as I have indicated. Conceptual coherence dictates that I read s 33N(1)(c) through the general lens of s 33N(1) by comparing representative proceedings with non-representative proceedings. Moreover, s 33N(1)(d) is also not satisfied. The claims of the group members in either of the proceedings ought to be resolved by representative proceedings; it cannot be said that it is otherwise inappropriate that such claims be pursued by means of a set of representative proceedings.

107    So, whether s 38A can be utilised to address duplicative representative complaints is a matter for debate, but a debate of course for another day given that the AIC has not presently sought to exercise any power thereunder.

108    Let me turn directly then to an analysis of the AIC’s preclusion decision and the question of whether the Act required it.

Analysis

109    In my view the AIC erred in so far as she construed ss 36, 38 and 39 as precluding her from accepting the second MB complaint as validly made and precluding her from requiring investigation under s 40 by reason only that it was lodged second in time. She injected a criterion not found in the Act. Indeed, neither a literal nor liberal reading of the applicable remedial provisions of Part V of the Act support her construction.

110    In my view, where a representative complaint that satisfies the requirements of ss 36 and 38 is lodged, the AIC is obliged by s 40 to investigate it in the absence of a valid decision under ss 38A or 41. The AIC has no power to refuse to accept a validly made representative complaint that satisfies the requirements of s 36 and 38, unless the AIC exercises her discretion under ss 38A or 41.

111    Let me turn then to the AIC’s justification for her preclusion decision.

112    The AIC says that s 39 when read with ss 36 and 38 has the result that a person cannot validly make a representative complaint on behalf of individuals who are class members of an earlier lodged representative complaint in respect of the same subject matter.

113    By way of context to s 39, the AIC makes the following points.

114    First, a representative complaint is made under s 36(1).

115    Second, the Act contemplates that each class member on behalf of whom a representative complaint may be made has separate individual complaints against the same person or entity (ss 38(1)(a) and (2)(b) and (d)). That is also confirmed by ss 38A(2)(a), (b) and (d) concerning the “declassing” of representative complaints.

116    Third, in lodging a representative complaint, the representative complainant is given authority to make those individual complaints to the AIC on behalf of the class members (ss 6, 36(2) and 38(2)(b)). It is said that the representative complainant has a form of statutory agency to make to the AIC the individual complaints of class members on their behalf.

117    Fourth, the authority to act on behalf of class members in lodging a representative complaint with the AIC does not require the consent of class members (s 38(3)).

118    So, it is said that the provisions of the Act concerning representative complaints provide a convenient and efficient procedural mechanism allowing for the grouping of numerous individual complaints to the AIC. And it is pointed out that the provisions of the Act draw where appropriate on the provisions of Part IVA of the FCA Act.

119    It is said that this understanding of a representative complaint informs the effect of s 39.

120    The AIC says that by reason of s 39, a class member for an existing representative complaint has no entitlement to complain to the AIC in respect of the same subject matter as the representative complaint. It follows, so it is said, that a second representative complaint cannot be made on behalf of that class member in respect of the same subject matter. It is said that at the time the second representative complaint is made, s 39 operates so that the class member has no ability to complain to the AIC under s 36(1) in respect of the same subject matter. Accordingly, at that time, the conditions in ss 38(1)(a) and (2)(b) and (d) and the definition of “representative complaint” cannot be satisfied in respect of the class member, and the second representative complaint cannot validly cover the class member.

121    It is then said that if a class member cannot complain to the AIC, then logically another person cannot complain to the AIC on behalf of that class member. In this respect it is said that an agent cannot have greater authority than the agent’s principal.

122    Now as to any tension between the heading to s 39, which refers to a class member not being entitled to lodge an individual complaint, and the text of s 39, which refers to a class member not being entitled to lodge a complaint, the AIC says that once it is recognised that a representative complainant acts on behalf of the class members and that the capacity of each individual class member to make an individual complaint is essential to the concept of a representative complaint, then there is no tension between the heading and the text of s 39.

123    Further, it is said that the AIC’s construction is not undermined by the opt-out nature of the representative complaint procedure.

124    Further, it is said that the legislative history of s 39 supports the AIC’s construction. It is said that the original wording of s 39 allowed a class member covered by a representative complaint also to make a complaint under s 36(1). So, there was the potential for multiple overlapping representative and individual complaints covering the same individuals in respect of the same subject matter. The 1993 amendment to s 39 avoided the potential for overlap.

125    But the AIC says that the applicant’s construction is contrary to that purpose. It allows for multiple complaints covering the same subject matter in respect of the same class members. It is said that on the applicant’s construction, there could be as many representative complaints as there are members of the class.

126    Further, it is said that the purpose of avoiding overlap in the persons covered by complaints is also facilitated by s 38C, which was introduced at the same time as s 39 was amended by the 1993 amending legislation. Section 38C allows the AIC to amend the class of persons on whose behalf a representative complaint is lodged, where the AIC is satisfied that the amendments would allow the complaint to be dealt with as a representative complaint. It is said that s 38C proceeds on the basis that an overlap of class members may prevent a complaint from being a validly constituted representative complaint. It is said that where a representative complaint has been lodged in respect of a subject matter covering one class of persons, and a second representative complaint is lodged covering another partially overlapping class, the AIC can exercise the power under s 38C to avoid the overlap between the two classes so as to constitute two valid representative complaints. I should note here that there is no analogue to s 38C under Part IVA of the FCA Act.

127    Further, it is said that there is no apparent reason why the Act would permit multiple representative complaints covering the same class members in respect of the same subject matter.

128    It is pointed out that unlike curial proceedings, the investigation of the acts or practices the subject of complaints is an inquisitorial not an adversarial process. Under s 43(2), the AIC has a broad discretion as to the manner in which an investigation of the subject matter of a complaint is to be conducted. Further, in some cases it may proceed without a hearing (s 43(4)(b)).

129    If the AIC makes a determination under s 52 in respect of a representative complaint, the determination must identify those class members affected by the determination (s 53). It is said that if there are two or more representative complaints concerning the same subject matter and covering the same class of persons, it is not apparent what purpose is served by the AIC making two determinations.

130    Now the AIC accepts that the AIC could not make a determination that compensation should be paid in respect of both complaints. But it is said that it is not clear how the AIC would decide as to under which complaint she should determine that compensation should be paid. Contrastingly, it is said that there is no difficulty where the class members are non-overlapping.

131    In summary it is said that the AIC did not err in concluding that the second MB complaint was not a validly made representative complaint. By reason of s 39, it is said that the applicant lacked the capacity to bring a complaint on behalf of any of the class members for the JWS complaint. And since, apart from the applicant himself, the class members for the JWS complaint and the second MB complaint were the same, it is said that the second MB complaint could not be a valid representative complaint.

132    Now I would reject the AIC’s principal contentions.

133    Section 39 is confined to the circumstance where a class member seeks to lodge an individual complaint on their own behalf in relation to the same subject matter as the representative complaint with respect to which they are already a class member. Contrastingly, there is nothing in the Act which expressly or impliedly prohibits the valid acceptance and investigation of more than one representative complaint about the same subject matter.

134    The text, context and purpose of s 39 does not suggest that it operates as a bar to the commencement of one or more representative complaints, whether by a person who is a class member at the time of lodgement or after that former class member has withdrawn under s 38B(2). As should already be apparent, the second MB complaint is dealing with the second scenario.

135    Now as I have already touched on, when s 38B(2) was amended in 2012, the explanatory memorandum to the 2012 Bill provided the following explanation (at 236):

Item 75 will amend subsection 38B(2) by removing the end of the subsection and replacing it with two paragraphs.

The new paragraph 38B(2)(a) will implement the Government’s response to ALRC Recommendation 49-9, by providing that a class member may withdraw from a representative complaint at any time if the complaint was lodged without the member’s consent. Currently, subsection 38(3) allows a representative complaint to be lodged without the consent of class members, and section 39 prevents class members of a representative complaint from lodging individual complaints in respect of the same subject matter. This amendment is intended to eliminate the possibility that a person’s capacity to make an individual complaint could be removed when he or she has become a class member of a representative complaint lodged without his or her consent. Where a person does withdraw from a representative complaint under paragraph 38B(2)(a), he or she will not be prohibited from lodging an individual complaint.

…

136    The explanatory memorandum makes it clear that s 39 only prevents the making of an individual complaint by a class member of an extant representative complaint made under s 36. But s 38B(2) preserves a class member’s capacity to withdraw from a representative complaint and lodge an individual complaint under s 36.

137    Section 39 is silent on the question of whether another representative complaint about the same subject matter can be lodged by a complainant who makes a representative complaint (the first MB complaint) prior to withdrawing as a class member from another representative complaint (the JWS complaint) under s 38B(2) or after having done so (the second MB complaint).

138    Now the AIC says that there is no apparent reason why the Act would permit multiple representative complaints covering the same class members in respect of the same subject matter. But I agree with Ms Doyle SC that there is nothing in the Act which suggests that there cannot be lodged more than one valid representative complaint about the same data breach. The only limitation which is provided for in the Act is that a class member may not advance both their own individual complaint and at the same time remain a class member of a representative complaint in respect of the same alleged data breach. The rationale which underpins this position is clear. An individual is not permitted to be at the same time both a passive member of a class represented by a representative complainant and also be actively pursuing their own individual complaint.

139    Now during the hearing Ms Gordon KC put the argument that s 39 has the effect that if a class member cannot make an individual complaint to the AIC about the same data breach as that which is the subject of a representative complaint, then logically another person cannot complain to the AIC on behalf of that class member.

140    This argument at first blush had a certain charm, but on reflection it is gossamer-thin.

141    A representative complaint is not a bundling up of identical individual complaints which are lodged by a lead complainant on behalf of the other class members. Rather, the pre-conditions in s 38(1) are that class members have complaints against the same person or entity, that their complaints arise out of the same or similar or related circumstances and that their complaints give rise to a substantial common issue of law or fact.

142    Again, Ms Doyle SC is correct in pointing out that the satisfaction of this criteria is not the same thing as an individual who lodges the representative complaint being a mere agent lodging multiple individual complaints on behalf of many others. Rather, the representative complainant is an individual whose complaint is representative of those in the class, and in respect of whom the class members are privies in interest concerning the claims involving the common questions of law or fact. It is this feature of the representative complainant being the privy in interest of the class members which renders it inappropriate for an individual to both lodge and pursue their own individual complaint whilst also participating in the representative complaint. This is of course what s 39 both speaks to and reinforces.

143    Further, it is not in doubt that s 39 was intended to cure the perceived vice of individual complaints being commenced by the same persons whose interference with privacy is already the subject of a representative complaint; see the relevant passage of the explanatory memorandum to the 1993 Bill which I have already set out.

144    So, the prohibition in s 39 only prevents an existing class member lodging an individual complaint about the same subject matter as a representative complaint, but does not prevent a representative complaint being lodged by a representative complainant, who has opted out of another representative complaint under s 38B(2). Where that former class member proceeds to lodge a representative complaint this is done on behalf of other class members in circumstances where by reason of the operation of s 38(3) there is no requirement for consent on behalf of the class members.

145    Further, a substantive analogue to ss 38B(2) and 39 is found in s 33J(1) of the FCA Act. Where a group member has opted out under s 33J, they possess, subject to any limitation period, a right to commence an individual proceeding in respect of the same subject matter as the representative proceeding, and no s 33ZB judgment would issue in respect of their individual claim.

146    Let me express the point in another way.

147    Take a class member, say person X, under the JWS complaint; as I have said, the applicant has now withdrawn as a class member. And assume that the applicant by making the second MB complaint has done so as representing other persons including person X. And also assume that person X has no knowledge of this and has not consented. What the AIC seeks to argue is that person X is under s 39 “[a] person who is a class member for a representative complaint” being the JWS complaint. Then the AIC wants to argue that what the applicant has done in lodging the second MB complaint, which covers other persons including person X, is against s 39 because person X “is not entitled to lodge a complaint in respect of the same subject matter”.

148    But there are two flaws with this reasoning.

149    First and foremost, person X has not lodged anything. It is the applicant that has lodged the second MB complaint. Further, the applicant in lodging a representative complaint is not acting as an agent for person X and nor has person X given any express, implied or ostensible authority to the applicant. Rather the Act confers the requisite statutory authority on the applicant. Person X neither directly nor through the applicant has acted contrary to s 39.

150    Second, and for the reasons that I have already given, the very text and heading of s 39 and its combination with s 38B all powerfully indicate that s 39 precludes the lodging of an individual complaint. It says nothing about the lodging of representative complaints, let alone by a person different to person X. The note to s 38B(2) is consistent with this.

151    Let me broaden the scope of the discussion and say something more about the management of multiple representative complaints.

152    First, the Act contemplates that there may exist more than one complaint about the same subject matter. So, there may be on foot at the same time one or more representative complaints, individual complaints and an AIC initiated investigation, which all relate to the same alleged interference with privacy and which are all being investigated concurrently by the AIC.

153    Second, there is no express provision of the Act or any manifest or necessarily implicit intention that there is any need to resolve or remove any multiplicity of representative complaints by refusing to accept as valid or refusing to further investigate one or more complaints pertaining to the same subject matter.

154    Third, representative complaints may come in many flavours. So, assume that the first in time representative complaint is lodged by an unrepresented representative complainant. Assume that the second in time representative complainant involving the same class is represented by experienced lawyers. The AIC would have it that she is bound to accept the first complaint as the only validly lodged representative complaint concerning the interference with privacy in question, and to reject the second complaint. So, there would be no discretion to seek and be provided with the lawyers’ assistance in relation to an investigation of the data breach and the management of the compensation claims of the class members. This would be an inefficient result to say the least. Perhaps an exercise of power under s 38A(1) and/or s 38B(1) could ameliorate the position, perhaps not.

155    Further, although the AIC says that on the applicant’s construction there could be as many representative complaints as there are members of the class, any such possibility of such an unrealistic scenario does not justify rewriting s 39 so as to operate as an inflexible prohibition on the existence of more than one representative complaint with overlapping class membership.

156    Further, the AIC seeks to shore up her preferred construction by referring to the broad discretion in which an investigation of a representative complaint takes place and the prospect that a s 52 determination can be made without a hearing. But the decision to proceed to a s 52 determination without holding a hearing is premised on the matters in s 43(4). And the question under s 43(4)(a) is whether it is apparent to the AIC that the matter to which the investigation relates can be adequately determined in the absence of the complainant and the respondent. But in respect of representative complaints involving a data breach, this is unlikely. The respondent will usually have an incentive to actively participate in the resolution of a representative complaint.

157    Further, the AIC queries the utility of having to make two determinations. But by reason of the operation of s 52(1)(b)(iii), s 52(1A)(d), s 52(4) and s 52(5), it is already the case that the AIC may after investigating both a representative complaint and an AIC initiated investigation declare that class members in a representative complaint (s 52(1)(b)(iii), s 52(4) and s 52(5)) or one or more individuals (s 52(1A)(d)) are entitled to the payment of amounts by way of compensation. So, if one has an AIC initiated investigation and a representative complaint which are both being investigated, the AIC may make two determinations and class members may be the subject of two determinations concerning the same subject matter. This is the position at the least concerning Optus, and irrespective of the question of the validity of the preclusion decision.

158    Further, as to the mode by which the AIC will assess and organise the distribution of compensation payments to class members and the difficulties conjured up by the AIC, under s 52(4) the AIC may in a representative complaint provide for payment of specific amounts worked out in a manner specified by the AIC including by giving directions which the AIC thinks just in relation to the manner in which class members are to establish their entitlement to any payment (s 52(5)). This would remain the case where there was more than one representative complaint.

159    Finally, Ms Gordon KC sought to draw some comfort out of s 38C. Now it may be accepted that a particular operation of s 38C could potentially reduce or remove duplication. But it is pushing the envelope to say that one particular operation of s 38C could drive the proper construction of s 39 or any necessary implications flowing therefrom.

160    In summary, the AIC’s preclusion decision is invalid. So, the second MB complaint should be investigated subject to any power that the AIC may choose to exercise under s 38A or s 41.

161    Finally, let me say something concerning the first MB complaint, which the applicant has not withdrawn. The only action taken by the applicant was a withdrawal from the JWS complaint. Strictly then the first MB complaint is still on foot.

162    The first MB complaint was in the same terms as the second MB complaint which is the subject of the preclusion decision. The AIC appears to have also treated the first MB complaint as not validly lodged. But no decision has actually been made in respect of the first MB complaint.

163    Now the AIC says that the applicant’s conduct can only be understood as withdrawing the first MB complaint and replacing it with the second MB complaint. And so the AIC was obliged by reason of s 41(1A) not to investigate the first MB complaint. In my view there is no substance to that point. The applicant has not yet withdrawn the first MB complaint.

164    But in any event, the AIC says that the first MB complaint was invalidly made. Even on the applicant’s construction of s 39, the AIC says that at the time the first MB complaint was lodged the applicant could not lodge an individual complaint under s 36(1). It is said that since a representative complainant must have the ability to complain on his own behalf (confirmed by s 38A(3)(a)), it follows that even on the applicant’s construction of s 39 the applicant could not validly lodge the first MB complaint.

165    But this is all a little odd because the applicant at the time of lodging the first MB complaint did not know and could not have known at that time that he was a class member under the JWS complaint.

166    I am not inclined to agree with the AIC, but in any event I do not need to finally rule on this. On any view there is no need for the first MB complaint to proceed. It should be withdrawn. I could of course just leave the AIC to exercise her powers under s 38A or s 41 in relation also to the first MB complaint. But given that I am seized of the matter I am prepared to entertain making an order if necessary directing the applicant to withdraw the first MB complaint.

167    Let me turn more generally to the question of relief.

Relief

168    The Court may grant judicial review remedies in an exercise of the Court’s jurisdiction under ss 21 or 23 of the FCA Act, where the matter falls within the original jurisdiction of the Court under ss 39B(1) or 39B(1A)(c) of the Judiciary Act. Of course the constitutional writ jurisdiction under s 75(v) of the Constitution, conferred on the Court by s 39B of the Judiciary Act, is discretionary.

169    Now the applicant seeks:

(a)    orders setting aside or quashing the AIC’s preclusion decision;

(b)    a writ of mandamus or an order directing the AIC to accept the second MB complaint as validly made and directing the AIC to investigate and determine that complaint according to law;

(c)    alternatively, an order directing the AIC to accept the first MB complaint as validly made and directing the AIC to investigate and determine that complaint according to law; and/or

(d)    declaratory relief in respect of the proper construction of ss 36, 38A, 39, 40 and 41 of the Act.

170    First, I have no difficulty setting aside or quashing the preclusion decision for error of law in circumstances where the materiality of that error is not in doubt.

171    Second, I will not issue a writ of mandamus or make any order directing the AIC to investigate and determine the second MB complaint according to law as such an order would pre-empt the exercise by the AIC of any potential discretion under s 38A and/or s 41 to in effect de-class the second MB complaint or not to investigate or further investigate the second MB complaint. The preclusion decision was made solely on the ground that the second MB complaint was not a validly made representative complaint. The AIC has not yet considered whether to exercise her powers under s 38A and/or s 41.

172    Third, it is not appropriate to make the declaratory relief sought. My views as to the proper construction of, inter-alia, ss 2A, 27, 29, 36, 38, 38A, 38B, 39, 40 and 41 are contained in these reasons. There is no additional utility in granting any declaratory relief.

173    Fourth, as to the first MB complaint, I have indicated the approach that can or should be taken.

Conclusion

174    For the foregoing reasons, I will quash the preclusion decision.

175    I will hear further from the parties as to the necessary and consequential orders. In terms of costs, in my view the applicant should have his costs. I am disinclined to penalise the applicant for the excess baggage associated with his fall-back positions.

Associate:

Dated:    1 March 2024