In addition to its jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 to review a determination of the Information Commissioner, the Court has jurisdiction to enforce a determination of the Commissioner.
The key features of the Court's jurisdiction under the Privacy Act 1988 are:
- If there is no relevant privacy code in place, the Australian Privacy Principles apply.
- If you are not satisfied with the way in which an organisation or agency is handling your personal information, you should take up your concern with the relevant organisation in the first instance.
- If the organisation or agency doesn’t respond to your complaint or you’re not happy with their response, you can lodge a complaint with the Information Commissioner.
- The emphasis is intended to be on conciliation of complaints, but where this is not possible, the Commissioner must make a determination on the complaint.
- Determinations may be reviewed under the Administrative Decisions (Judicial Review) Act 1977.
- Determinations may be enforced by application to the Court (or the Federal Court).
- Enforcement proceedings may be instituted by a complainant or the Commissioner.
- Proceedings are by way of hearing de novo but evidence received by the Commissioner is available to the Court, as are the Commissioner’s reasons.
- The Commissioner can issue a certificate which is prima facie evidence of a breach of the relevant privacy code or Australian Privacy Principles.
- If an interference with privacy is established, the Court can make such orders as it sees fit, including a declaration of right or an injunction, for which there is to be no undertaking as to damages.
I want to enforce a privacy determination
To enforce a determination, you will need to file:
- an Application – General federal law, and
- an Affidavit - General federal law and migration or statement of claim or points of claim (see subrules 4.04(1) and (2)), and
- a copy of the Commissioner’s determination,
You may also file:
- any written reasons for the determination from the Commissioner, and
- a copy of any document that was before the Commissioner.
What do I have to pay?
You will need to pay a filing fee to the Court when you file the application.
In some circumstances, you may be exempted from paying court fees, for example, if you are a concession holder. You will need to apply to the Court for the exemption, using the Application form for exemption from paying court fees – General. You can also apply for an exemption if paying court fees would cause you financial hardship. Use the Application form for exemption from paying court fees – Financial hardship.
Filing with the Court
Wherever possible, you must file court documents online using eLodgment. For information on how to use eLodgment, see the Federal Court website.
If it is not possible to file using eLodgment, you may be able to file your documents in person, by mail, or in certain circumstances by fax or email. Contact the Court if you are not sure how to file the documents.
How do I notify the respondent?
After filing your application, you must serve the application and each document you have filed on each other party.
You can deliver the documents in person or send them by registered or express post.
To serve documents on a corporation, you (or someone who serves the documents on your behalf) can serve the documents by leaving a copy with a person who appears to be an officer of the corporation or appears to be working for the corporation. You can leave the documents:
- at the corporation’s registered office; or
- if there is no registered office, at the corporation’s main place of business or main office.
After the documents have been served, you will need to complete an Affidavit of service, which you should file with the Court (using eLodgment). The affidavit of service must be sworn or affirmed in front of a person authorised by law to witness the swearing of affidavits, such as a lawyer or Justice of the Peace. You should have a copy of the filed affidavit of service with you at the court hearing.
Response
Within 28 days after you serve the application, the respondent(s) will need to file and serve:
- a Response
- an Affidavit - General federal lawor defence or points of defence.
Discontinuance
An applicant can choose to discontinue the application at any time by filing a Notice of discontinuance with the Court.
