Nigel, Waters --- "The 'quick Brandy fix' for enforcing Privacy Commissioner determinations" [1995] PrivLawPRpr 84; (1995) 2(7) Privacy Law & Policy Reporter 133

---

---

The 'quick Brandy fix' for enforcing Privacy Commissioner determinations

Human Rights Legislation Amendment Act 1994 - assent 28 June 1995

The Human Rights Legislation Amendment Act 1994 has changed the mechanisms by which determinations of the Human Rights & Equal Opportunity Commission (HREOC) and the Privacy Commissioner against respondents other than Commonwealth agencies are enforced. The changes are a short term response to the High Court's decision in Brandy v HREOC [1995] HCA 10; (1995) 127 ALR 1 (see 2 PLPR 32), in which the registration and enforcement provisions of the Racial Discrimination Act 1975 were struck down, on the grounds that HREOC could not exercise the judicial power of the Commonwealth. Identical provisions in other anti-discrimination legislation and in the Privacy Act 1988 (Cth) (introduced in the case of the Privacy Act in January 1994 - see 1 PLPR 15) must also be regarded as invalid.

The June 1995 changes (to Div 3 of Pt V, ss 54-55, and to s 63(2) of the Privacy Act) restore the pre-1994 arrangements whereby enforcement of a Privacy Commissioner determination against a non-Commonwealth respondent (such as a tax file number recipient or a credit provider) would have to be by means of a de novo hearing in the Federal Court. The enforcement mechanism for Privacy Commissioner determinations have therefore come full circle.

Comment

During the period for which any determinations under s 52 of the Privacy Act would have been invalid (January 1994-June 1995) the Privacy Commissioner in fact made no such determinations, so the issue of respondents seeking further action does not arise.

A joint HREOC, Attorney-General's Department and Department of Finance Review of HREOC, under way since 1993, is due to report soon and will make recommendations concerning a long term solution to the enforcement issue. The current (and pre-1992) mechanism is seen as unsatisfactory in relation to race, sex and disability discrimination matters because it requires complainants to go through a potentially traumatic re-hearing of the case in the Federal Court if the respondent declines to comply with the terms of the HREOC determination. The Review Steering Committee has consulted community groups and government agencies concerning possible vesting of the determinations power in courts.

In relation to the Privacy Act, it is arguable that the current (and pre-1994) arrangements, although not entirely satisfactory, are adequate. The likelihood of recalcitrant respondents is considerably less, at least in relation to the current private sector jurisdictions of tax file numbers and credit information, and complaint cases typically do not involve the same degree of emotion and potential trauma as many anti-discrimination cases. It may therefore on balance be worth the risk of a few cases having to go to a full re-hearing in the Federal Court rather than lose the ability of the Privacy Commissioner to make relatively timely determination after a less formal hearing process. The facility remains for a complainant seeking to enforce a determination to apply to the Attorney-General for financial assistance (s 63(2) of the Privacy Act).

Nigel Waters