Federal Court of Australia

Liu v Australian Information Commissioner [2024] FCA 1287

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review is dismissed.

2.    The applicant is to pay the respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

NEEDHAM J:

1    The applicant, Mr Liu, seeks judicial review of the decision of the respondent, the Australian Information Commissioner, by her delegate, not to investigate Mr Liu’s complaint under s 41(1) of the Privacy Act 1988 (Cth), on the ground that the disclosure of Mr Liu’s information by Services Australia to his former spouse was not an interference with his privacy.

2    Mr Liu was dissatisfied with that outcome and sought judicial review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

3    In an application under the ADJR Act or alternatively s 39B of the Judiciary Act 1903 (Cth), the Court is concerned only with the legality of the Commissioner’s decision not to proceed further by reference to one or more of the grounds of review that are advanced, and not with the merits of the applicant’s underlying claims: Madzikanda v Australian Information Commissioner [2023] FCA 1445 at [5] (Wheelahan J), citing Simjanovska v Department of Human Services [2019] FCA 499 at [108]-[117] (Perry J); Jones v Office of the Australian Information Commissioner [2014] FCA 285 at [19]-[22] (Greenwood J).

4    Section 41(1)(a) of the Privacy Act provides (relevantly):

41    Commissioner may or must decide not to investigate etc. in certain circumstances

(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 …

5    The word “may” indicates that the Commissioner has a discretion not to investigate, or to investigate further, on satisfaction of the matter in s 41(1)(a).

6    Per Perry J in Simjanovska at [108], the Commissioner would make a jurisdictional error or an error under s 5(1) of the ADJR Act if, for example,

he misunderstood the criteria by which to determine whether to exercise the discretion in s 41(1) of the Privacy Act not to investigate a complaint; his decision was legally unreasonable; he failed to take into account a relevant (mandatory) consideration in a way that affected the exercise of the statutory power; or he failed to hear and determine the applicant’s complaint in accordance with the requirements of procedural fairness (see e.g. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court)).

7    Mr Liu relied on five grounds in his application for judicial review:

1.    Child Support informed my ex-wife within 5 minutes after I updated the information that I had a newborn baby.

2.    Child Support’s use and disclosure of my private life is clearly not something I would expect (under Australia Privacy Principles 6.1).

3.    There is no authorisation of Australia law for Child Support to disclose my private information. (under Australia Privacy Principles 6.1 and the 146E(4) of Child Support (Assessment) Act 1989 (Cth))

4.    Child Support’s misuse of information about my private life exacerbated tensions between my ex-wife and me, which in turn was detrimental to the support of my children. My ex-wife had not let me see my daughter in six months.

5.    The OAIC’s decision to close the investigation regarding my privacy matter is not consistent with the facts and the law. (section 41(1) of the Privacy Act).

8    In his reply submissions, Mr Liu sought an order to set aside the Commissioner’s decision not to investigate the privacy complaint, and that his privacy breach matter be remitted to the Commissioner for reconsideration in accordance with law.

9    The matter came before me for hearing on 22 October 2024. Mr Liu appeared in person, with an interpreter, however, he informed me at the close of proceedings that he had not needed anything interpreted for him. Mr Liu was able to respond to questions from the Bench and was given an opportunity to respond to the submissions made orally by Ms Dargan of counsel, who appeared for the Commissioner. The respondent was responsible for preparing a joint Court Book and list of authorities, and I am grateful for the assistance provided in that way.

10    Mr Liu relied on his affidavit affirmed 16 April 2024. Noting that the affidavit is mainly in the form of what appears to be a submission, I exercised my discretion to limit the use of the affidavit under s 136 of the Evidence Act 1995 (Cth) to matters put in submission, excepting the first sentence of [5] which appeared to be evidence.

Mr Liu’s complaint

11    Mr Liu had a binding child support agreement in relation to child support payments with his former spouse, with whom he had children. He later remarried and had another child with his current spouse. On 3 November 2021, Mr Liu telephoned Services Australia (Child Support) to inform them of the birth of his newborn child in order to see if his child support payments in relation to his children with his former wife could be reduced.

12    Mr Liu says that he provided the information solely for the purpose of seeking to have his child support obligations re-assessed, and not for the disclosure of that information to third parties. He complains that within a short period of time – he says some minutes in fact – after providing this information, he received a call from his former spouse which led to him not being able to see his daughter for some period of time.

13    On 16 November 2021, Mr Liu made a complaint to Services Australia.

14    Having not received a response, the applicant lodged a complaint to the Commissioner using its online form on 21 November 2022. His complaint read (as per original text):-

Last nov, when my baby was born, i provide information to child support to update my personal information, and then the officer called my ex wife to share the my new born baby information to her including his date of birth, this event results she didnt answer my phone and i could not see my 2 children for long time, and she refuse to negoniate with me anymore, i lodged internal complain with child suppport but untill today, they have no progross , everytime i ask them , they said it still processing and they can tell when it done

Investigation by Services Australia and the Commissioner

15    On 11 May 2023, Services Australia wrote to Mr Liu stating that it had not identified any unauthorised use or disclosure of Mr Liu’s personal information, or any other interference of his privacy under the Privacy Act. From its investigation, Services Australia found that Mr Liu and Mr Liu’s former spouse were each notified by letter on 3 November 2021 that there would be no change to the amount of child support payable and a relevant dependent child had been added for Mr Liu. Additionally, it appears that on 22 November 2021, a Complaints Officer from Services Australia contacted Mr Liu to explain that a notional assessment is created every 3 years and should include the assessment details, including the incomes of both parents, care of the children, and any relevant dependent children.

16    On 26 October 2023, the Commissioner sought and was provided further information from Mr Liu in respect of the complaint. Mr Liu advised that the complaint with Services Australia was not resolved, and he was seeking an apology, changes to Services Australia’s procedures, training of staff and $100,000 in compensation.

17    On 1 November 2023, the Commissioner wrote to Services Australia advising that it had received a privacy complaint from the applicant. On 23 February 2024, Services Australia wrote to the Commissioner stating the following:

The agency has investigated Mr Liu’s complaint and identified the following:

•    On 3 November 2021, Mr Lui called the agency to discuss several matters and notify the agency of his relevant dependent (newborn) child.

•    On the same day, a letter was issued to both Mr Liu and his ex-wife to confirm that there would be no change to the amount of child support payable and a relevant dependent child had been added for Mr Liu.

•    Under section 146E of the Child Support Assessment Act 1989, the agency is required to notify Mr Liu’s ex-wife about the changes made to her child support record. The Child Support Guide (2.7.4) provides further clarification stating “The notional assessment is the child support amount that would have been payable but for the child support agreement (taking into account the relevant circumstances of a case, including change of assessment) (CSA Act section 146A). The Registrar must serve written notice of the notional assessment on the parties (CSA Act section 146E).”

•    On 22 November 2021, a Complaints Officer contacted Mr Liu to provide an explanation, confirming that a notional assessment is created every 3 years and should include the assessment details, including the incomes of both parents, care of the children and any relevant dependent children.

•    On 11 May 2023, a privacy outcome letter was issued to Mr Liu, advising that the agency has not identified any unauthorised use or disclosure of personal information.

18    A brief outline of the processes under the Child Support (Assessment) Act 1989 (Cth) (CSA Act) is as follows. The CSA Act has, as its principal object, “to ensure that children receive a proper level of financial support from their parents” (s 4(1)). The proper level of financial support can be determined by way of an administrative assessment by the Registrar, or alternatively by the parents entering into a child support agreement, the latter of which is what Mr Liu and Mr Liu’s ex-spouse had in place. As set out in s 146A of the CSA Act, a simplified outline of the process is as follows:

•    If the Registrar accepts a certain kind of child support agreement, or the court makes a certain kind of order, the Registrar must make a provisional notional assessment of the annual rate of child support that would be payable for a day in a child support period if child support were payable under Part 5 instead of under the agreement or order.

•    The notional assessment is used in the maintenance income test in working out a person’s Part A rate of family tax benefit under the A New Tax System (Family Assistance) Act 1999.

•    A parent may estimate their adjusted taxable income for the purposes of making a provisional notional assessment.

19    The Registrar, after a notional assessment occurs, is required under s 146E(4) of the CSA Act to serve in writing the notional assessment on the liable parent and the carer entitled to child support. A notional assessment must include information regarding the number and age ranges of the relevant dependent children of the assessed parent: ss 146E(5), 76(2)(c) of the CSA Act.

20    On 28 February 2024, a delegate of the Commissioner wrote to Mr Liu advising that they had formed the view that there was no interference with his privacy and “therefore intend[ed] to exercise the discretion under s 41(1)(a) of the Privacy Act to not investigate [his] complaint”. The delegate invited Mr Liu to provide any further information in relation to the complaint by 13 March 2024 before the complaint was closed.

21    No further information was provided by Mr Liu. On 14 March 2024, the delegate issued the decision under review exercising the discretion not to investigate the complaint pursuant to s 41(1) of the Privacy Act. The delegate provided the following reasons:

Based on the available information, it is my view that Services Australia has not interfered with your privacy as defined by the Privacy Act.

An APP entity can only use or disclose personal information for a purpose for which it was collected (primary purpose).

In this case, it appears that Services Australia has collected and disclosed your personal information for the primary purpose of providing you with its services – specifically, administering your child support agreement. As such, the disclosure of your personal information was permitted under APP 6.1.

Even if we were to consider that the disclosure was for a secondary purpose, it is my view that the disclosure was authorised by law.

Specifically, APP 6.2(b) states the secondary use or disclosure of the personal information is required or authorised by or under an Australian law or a court/tribunal order.

Under section 146E of the Child Support Assessment Act 1989 (CSA), the agency is required to notify all parties about any changes made to their child support record stating;

•    146E(4) “After a provisional notional assessment becomes a notional assessment, the Registrar must serve notice in writing of the notional assessment on the liable parent and the carer entitled to child support”.

Services Australia has advised that a notional assessment must include dependant [sic] children.

As Services Australia must comply with the CSA, it appears that Services Australia is required by that law to notify both parties of any changes made to their child support record.

As such, I am of the view that the disclosure of your personal information is permitted under APP 6 and cannot be considered an interference with your privacy, as defined in the Privacy Act.

The Privacy Act

22    The Privacy Act gives effect to 13 Australian Privacy Principles (known as APPs). APP entities, which include Australian agencies and organisations covered by the Privacy Act, must not do an act, or engage in a practice, that breaches an APP: s 15. The APPs are contained in Sch 1 of the Privacy Act.

23    An individual may complain to the Commissioner about an act or practice that may be an interference with the privacy of the individual: s 36(1). Subject to an exception that does not apply here, s 40 requires the Commissioner to investigate an act or practice that may be an interference with the privacy of an individual if a complaint about it has been made under s 36. However, the Commissioner may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made under s 36 if the Commissioner is satisfied that the act or practice is not an interference with the privacy of an individual: s 41(1)(a).

24    APP 6 relevantly provides:

6.1    If an APP entity holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondary purpose) unless:

(a)    the individual has consented to the use or disclosure of the information; or

(b)    subclause 6.2 or 6.3 applies in relation to the use or disclosure of the information.

Note:    Australian Privacy Principle 8 sets out requirements for the disclosure of personal information to a person who is not in Australia or an external Territory.

6.2    This subclause applies in relation to the use or disclosure of personal information about an individual if:

(a)    the individual would reasonably expect the APP entity to use or disclose the information for the secondary purpose and the secondary purpose is:

(i)    if the information is sensitive information—directly related to the primary purpose; or

(ii)    if the information is not sensitive information—related to the primary purpose; or

(b)    the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order …

The parties’ submissions

25    The Commissioner submitted that grounds 1 and 4 of the originating application are not amenable to judicial review, being factual assertions which do not go to the legal validity of the Commissioner’s decision.

26    The Commissioner submitted that grounds 2 and 3 are not subject to judicial review in their own right, but may be considered in the context of ground 5 and whether the Commissioner’s delegate reached the relevant state of satisfaction to engage s 41(1)(a).

27    In respect of ground 5, Mr Liu’s submissions can be summarised as the following:

(a)    The delegate erred in being satisfied that the collection and disclosure of the information was permissible under APP 6.1. Mr Liu contended that the information was provided without an expectation that it would be disclosed, and that it was disclosed for purposes other than for the purpose for which it was collected. Mr Liu claimed that the primary purpose of collecting the information was “to support the child”. Mr Liu stated that the disclosure of his personal information did not fulfil this purpose, but rather “exacerbated tensions between [his] ex-wife and [him], which in turn was detrimental to the support of [his] children”.

(b)    The delegate erred in being satisfied that the Registrar was required by s 146E of the CSA Act to disclose the information to his former spouse, and therefore disclosure was not permitted under APP 6.2(b). Mr Liu argued that the Registrar was not authorised to disclose this information as Services Australia had apparently decided not to reassess the applicant’s payments due to the existence of the binding child support agreement and as such no notional assessment had occurred.

28    In reply submissions, Mr Liu referred to the following grounds of judicial review which he submitted are applicable in this case:

i.    the conclusion is affected by some mistake of law

ii.    the decision-maker fails to take relevant matters into account or takes irrelevant matters into account;

iii.    the decision is illogical or irrational, or legally unreasonable; and

iv.    that the decision was made capriciously, arbitrarily or in bad faith.

29    The Commissioner submitted that that the delegate gave rational and logical reasons for the decision supported by logical inferences available from the material available. There is no suggestion that the delegate failed to take into account a relevant consideration or took into account an irrelevant consideration. By considering APP 6.1 on the face of the decision, the delegate cannot be said to have misconceived the nature of the task required under the Privacy Act. Mr Liu was also afforded opportunities to provide further information and provide additional comments prior to the decision (on 26 October 2023 and 28 February 2024).

30    The Commissioner submitted that the delegate did not make an error of law by finding that the primary purpose for which the information was collected and disclosed by Services Australia in accordance with APP 6.1 was to administer his child support agreement. It was submitted that Mr Liu’s contention that the primary purpose of the information was only to provide support for the child is misplaced.

31    The Commissioner contended that Mr Liu’s submission that the “disclosure was not something that the applicant would reasonably expect under APP 6.1” is incorrect, being a precondition to APP 6.2(a) and having no bearing on APP 6.2(b). It appears that Mr Liu may have been relying on the explanation of APP 6.1 and 6.2 provided in the APP Guidelines. The Guidelines, while providing an explanatory purpose, do not have legal force. Despite what is stated in the Guidelines, this test of expectation is not contained in APP 6.1, but rather found in APP 6.2(a).

32    The Commissioner further submitted that s 146E(4) of the CSA Act authorises disclosure of a notional assessment to both Mr Liu and his ex-spouse and disclosure of the information was therefore authorised by law pursuant to APP 6.2(b). Mr Liu’s argument that a notional assessment is not required where there was no change to his binding child support agreement was, it was submitted, misconceived. The requirement to issue a notional assessment is not affected by the fact that there is no change to an existing binding child support agreement.

33    In oral submissions, counsel for the Commissioner submitted that Mr Liu did not raise this argument that a notional assessment was not required with the Commissioner at the time of the decision. The Commissioner had only the information provided by Services Australia, which appeared to indicate that the information was disclosed on the basis that a notional assessment was made pursuant to s 146E of the CSA Act. As such, counsel contended that it was open to the delegate to make the decision based on the information available as provided by Services Australia and Mr Liu at the time.

34    Even if an error of law is capable of being shown in relation to the application of APP 6.2(b), the Commissioner submitted that the error would not be material in the sense that it could have made a difference to the decision that was made, as disclosure was permissible under APP 6.1.

Consideration

35    As noted above, there is no basis (absent legal unreasonableness, which was only faintly raised by Mr Liu), for a consideration of the merits of the decision.

36    Mr Liu’s task is made more difficult by the fact that the Commissioner’s (or her delegate’s) decision under s 41(1)(a) is discretionary (see the passage quoted above at [6] from Simjanovska at [108]). The statute requires that the Commissioner reach a state of satisfaction about any interference with Mr Liu’s privacy, and it is the process of reaching that determination of satisfaction that I need to consider; not whether, as a fact, there was in fact any such interference. Mr Liu needs to demonstrate that, in the Commissioner determining to close the complaint, a ground of review under s 5(1) of the ADJR Act has been made out. That sub-section provides:

(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.

37    It does appear to be the case that grounds 1 and 4 – that Services Australia informed Mr Liu’s former spouse promptly after he updated his information that he had a newborn baby, and that that disclosure exacerbated tensions in his private life and resulted in him not being able to see his daughter – are not amenable to judicial review in these proceedings. They relate to actions taken by Services Australia and focus, not on reviewable decisions or grounds of review in s 5(1) of the ADJR Act, but on the timing and consequences of the disclosure of the information.

38    Grounds 2, 3, and 5 can be considered together. Grounds 2 and 3 – that Services Australia disclosing the information that Mr Liu had a newborn baby to his former spouse was not something he would expect, was unauthorised, and was in breach of the APPs – may be considered on the question of whether there was an error of law infecting the decision not to investigate Mr Liu’s complaint of interference with his privacy. They cannot be considered on the basis of the merits of the decision of the Commissioner by her delegate. Ground 5 asserts that the decision of the Commissioner not to investigate the complaint “is not consistent with the facts and the law”.

39    I accept the submission on behalf of the Commissioner that “the only question for the Court is whether the discretion [not to investigate] has been exercised according to law”. Mr Liu contends that the decision not to investigate his complaint is “not consistent with the facts and the law” but that would require me to inquire impermissibly into the merits of the decision. Instead, I must review whether the Commissioner’s delegate’s decision exhibited any errors of the kind listed in s 5(1) of the ADJR Act.

40     Mr Liu’s complaint is based on his contention that the decision not to investigate his complaint was made on the basis of an error of law, to the effect that he provided information for one purpose (to investigate whether his child support payments could be reassessed) and Services Australia used it in a different way (by updating his record and informing the other parent of the birth of his newborn child). The purpose of the collection of the information was “administering [Mr Liu’s] child support agreement”. Once information is provided, a notional assessment of the rate of child support that a person would be required to pay if there was not a child support agreement in place is made (see s 146A of the CSA Act). Section 146E(4) then requires (and thus authorises) disclosure of the notional assessment “on the liable parent” (in this case Mr Liu) “and the carer entitled to child support” (in this case Mr Liu’s former spouse). For the purposes of the APPs, the requirement in s 146E(4) brings the disclosure of the information into APP 6.2(b), “the use or disclosure of the information is required or authorised by or under an Australian law”.

41    The Commissioner’s decision considered that notwithstanding the requirement in s 146E, the disclosure was authorised by APP 6.1, as the disclosure was for the primary purpose it was collected, that is, the administration of Mr Liu’s child support agreement. In any event, as noted above, the disclosure was required by s 146E(4) of the CSA Act.

42    Mr Liu raised, at the hearing, that as he had a child support agreement with his former spouse, Services Australia were not bound to make a notional assessment. That contention was not put to the Commissioner’s delegate when Mr Liu was asked for any further information, and so it was not before the decision maker and so cannot be considered as part of this judicial review. In any event, a notional assessment is relevant even when there is a child support agreement between the parents, as it is relevant to determining a parent’s entitlement to a family tax benefit (see s 146A of the CSA Act).

43    Apart from the question of whether there was a duty to make a notional assessment, Mr Liu did not specifically raise any question of irrelevant considerations being taken into account. Section 41(1)(a) does not prescribe any mandatory considerations to be taken into account when reaching the requisite level of satisfaction (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40; [1986] HCA 40).

44    In Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [138]–[139], McColl JA (Macfarlan JA agreeing and Emmett AJA to similar effect) set out the way in which relevant and irrelevant considerations should be considered:

Fourthly, 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.”

That does not mean parties may not point to matters they contend were required to be taken into consideration. Nevertheless, even taking such submissions into account, where relevant considerations are not specified, “it is largely for the decision-maker … to determine which matters the decision-maker regards as relevant and the comparative importance to be accorded to such matters.”

(Citations omitted)

45    This passage was approved by Banks-Smith J in Rana v Australian Information Commissioner [2022] FCA 817 at [72].

46    As noted above, there are no relevant considerations specified in s 41(1)(a) of the Privacy Act which must, or must not, be considered, in reaching the level of satisfaction required as to whether the act was a breach of privacy or not.

47    Mr Liu contended that the decision of the Commissioner was unreasonable and illogical, and that it was made arbitrarily. I am not satisfied on the material before me, or the material which was before the Commissioner’s delegate, that that is so. There is a clear statutory pathway for the use of the information provided and no submissions were made by Mr Liu to substantiate these allegations.

48    Accordingly, for the reasons above, there was no error of law attending the making of the decision to close Mr Liu’s complaint. The disclosure of the information to his former spouse was authorised by s 146E of the CSA Act (APP 6.2(b)), or alternatively was not in breach of APP 6.1. I am not satisfied that any other ground in s 5(1) of the ADJR Act are made out.

49    The application for judicial review is dismissed.

50    The applicant is to pay the respondent’s costs, as agreed or assessed.

Associate:

Dated:    8 November 2024