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Rivera v Australian Broadcasting Corporation [2005] FCA 661
Federal Court of Australia, Hill J, 25 May 2005
Application of Privacy Act to broadcasting activities of ABC - Privacy Act 1988, s7
Facts
Mr Rivera was a citizen of the USA who arrived in Australia some time in 2002. He was accused of murdering a female co-worker in the USA prior to his arrival in Australia and in September 2002 he was arrested following the issue of a warrant under the Extradition Act. In December 2002 a magistrate ordered that Mr Rivera was eligible to be extradited to the USA. Various appeals ensued. In late 2003 Mr Rivera sought assistance from Kingsford Legal Centre, a community legal centre associated with the University of New South Wales. A television production company, Hilton Cordell, was filming the activities of Kingsford Legal Centre at that time, including aspects of the way in which students working at the Centre were involved in Mr Rivera’s case. In February 2004 Hilton Cordell and the ABC entered into a contract under which the ABC commissioned Hilton Cordell to produce a documentary series. In September 2004 the ABC broadcast an episode of the series produced by Hilton Cordell featuring Kingsford Legal Centre and touching upon Mr Rivera’s case.
Mr Rivera claimed that the program broadcast by the ABC disclosed information he had provided in confidence to 2 students working at Kingsford Legal Centre on the understanding that they were solicitors. Mr Rivera (who was not legally represented) commenced proceedings in the Federal Court of Australia and argued that the ABC had contravened section 52 of the Trade Practices Act, breached the Privacy Act, defamed Mr Rivera and had breached an obligation of confidence. The ABC moved to strike out the proceedings on the basis that the Federal Court had no jurisdiction to hear it.
Held, striking out the claim
1 The ABC was a “prescribed information provider” for the purposes of the Trade Practices Act, and section 65A of that Act operated so that section 52 did not apply to any representations made in a television broadcast. Accordingly, the court had no jurisdiction under the Trade Practices Act.
2 The ABC is exempted from providing access to documents in relation to its program material in response to a request made under the Freedom of Information Act 1982 (Cth) by reason of Division 1 of Part II to Schedule 2 to that Act. Accordingly, s7(1)(c) of the Privacy Act operated so as to exempt any acts of practices of the ABC in respect of records in relation to its program material, and the court had no jurisdiction to grant relief under the Privacy Act.
3 The court had no accrued jurisdiction to determine a claim in defamation or for breach of an equitable obligation of confidence because there was no federal matter in respect of which the court had jurisdiction.
Fencott v Muller (1982) 152 CLR 570; Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261, applied.
Comment. The application of the Act to the activities of agencies listed in Division 1 of Part II to Schedule 2 to the FoI Act, such as the ABC, is very complicated, and it appears that the Court’s attention was not drawn to all of the relevant provisions. The majority of the agencies appearing on the list undertake commercial activities to some extent (eg CSIRO commercialises its research and development, and Australia Post provides postal and related services on a commercial basis). Section 7A provides that, despite s7(1)(c), the Act applies to acts or practices of agencies listed in Division 1 of Part II to Schedule 2 to the FoI Act that relate to their commercial activities. However, the effect of section 7A is to treat the agency as an “organisation” instead of as an “agency” (and therefore subject to the NPPs instead of the IPPs) to the extent their acts and practices relate to their commercial activities and are not otherwise exempt.
Accordingly, the Court ought to have considered the effect of s7A, in particular whether or not the acts and practices which were the subject of Mr Rivera’s complaints related to the “commercial activities” of the ABC. No such analysis appears in the judgment. If the commissioning and broadcasting of the documentary series was not a “commercial activity” of the ABC, the operation of s7(1)(c) would not be affected by s7A and the Act would not apply.
Alternatively, if the impugned activities did relate to the ABC’s commercial activities, it would be necessary to consider whether or not the ABC had breached any obligations imposed on it as an “organisation”. In this scenario, it would be necessary to determine whether or not the conduct of the ABC was exempted by reason of sections 7(1)(ee) and 7B(4). This exemption applies to the conduct of a “media organisation” in the course of journalism at a time when the media organisation is publicly committed to observe standards that (i) deal with privacy in the context of the activities of a media organisation and (ii) have been published in writing by the organisation or a body representing a class of media organisations. It is interesting that counsel for the ABC argued that the Act did not apply as a result of section 7B(4), but Hill J dismissed that argument on the basis that there was no evidence before him of the standards to which the ABC was publicly committed which dealt with privacy in the context of the activities of a media organisation. In fact, the ABC’s Editorial Policies, published at http://www.abc.net.au/corp/edpol02.pdf, do address issues of privacy. Had those policies been in evidence, it seems highly likely that even if the impugned activities related to the ABC’s commercial activities, section 7B(4) would have operated to exempt the ABC from complying with the NPPs.
Patrick Gunning, Mallesons Stephen Jaques
NR and NP v Roads and Traffic Authority [2004] NSWADT 276
NSW Administrative Decisions Tribunal, O’Connor P, 1 December 2004
Publicly available publication’ must be contemporaneous and have nexus to subject person. Unactioned suppression request is reason to believe applicant would object to disclosure.
Background
NR separated from his partner J, and moved house. He took one of two vehicles registered in his name with him. NR later updated his details with the RTA, for both vehicles, noting the registration address as his new address, but for the car left behind, the garaging address remained the same. NR asked the RTA to restrict his new address on their database, so that his address would not be disclosed to anyone else. NR said the officer assured him no one other than himself could obtain the address information.
The RTA did not suppress NR’s new address. NR was not informed of the steps required in order to have his address suppressed on their database.
At the time when annual registration of the vehicle fell due, the RTA sent the papers to NR at his new address. J received insurance papers from the insurance company. J attended at the RTA and obtained a copy of the registration renewal notice, which showed NR’s new address.
NR alleged that J then came to his new address and assaulted his sister, NP. NP sought compensation in relation to the assault, but the Tribunal found there was no causal link between the RTA’s disclosure and the assault, as there was other evidence to suggest that J already knew where NR lived.
Did the conduct involve “personal information”?
The respondent RTA argued that NR’s new address was not ‘personal information’, on the grounds that it was information contained in a ‘publicly available publication’ (s.4(3)(b) of the PPIP Act).
One basis for this was that the address was listed in the White Pages. However the Tribunal found that as the address was listed not against NR’s name (or even that of his sister NP; it was in the name of NP’s de facto partner, D) there was no sufficient nexus with NR.
The second basis was that NR, as a licensed plumber, had his home address listed as his registered business address on the website of the licensing authority, the Office of Fair Trading. However as the RTA did not produce evidence demonstrating that this was the case as at the date of the disclosure by the RTA to J, O’Connor J rejected that argument.
He therefore found there had been a disclosure of NR’s “personal information” to J by the RTA.
Was the disclosure authorised?
The respondent argued that the disclosure complied with IPP 11, in that it was ‘directly related to the purpose for which it was collected’, and the agency ‘had no reason to believe that the individual concerned would object to the disclosure’.
Given the Tribunal’s finding that NR had in fact asked for his address not to be disclosed, the Tribunal did not accept that the RTA had no reason to believe NR would object to the disclosure, and therefore rejected the RTA’s claim to have complied with IPP 11.
Remedies
As noted above, the claim for compensation by NP (the sister allegedly assaulted) was denied on the basis of lacking a causal link. Nonetheless President O’Connor noted that it is possible that a “person aggrieved” by conduct could be a person other than the person who was the subject of the personal information at issue, and thus a third party may be able to seek a review and a remedy for any breach.
A decision on other remedies was deferred, as was the RTA’s application for costs.
Comment
This case highlights the risk for agencies when staff make broad promises of maintaining confidentiality or protecting privacy, and then failing to note or action a client’s request to have their personal information suppressed. The failure to address a client’s obvious concern could then render unlawful any routine disclosures normally allowed under the “directly related” test.
Anna Johnston, Salinger & Co
GA v Department of Education and Training & NSW Police (No 2) [2005] NSWADT 10
NSW Administrative Decisions Tribunal
Robinson JM, 20 January 2005
Who can be an “aggrieved person”? Concessions made at planning meetings.
Background
GA had been acting in a number of proceedings against these two respondent agencies on behalf of himself, his three sons (GB, GC and GD), and the girlfriend of one of his sons (GE). The proceedings were originally commenced by way of five separate applications (i.e. one by each of the applicants).
During a series of planning meetings between December 2002 and February 2003, the parties and the Tribunal identified three separate components to these applications:
• transaction 1: a conversation between police officers and the school principal on 10 November 2000
• transaction 2: other, unspecific conversations between the school principal and his staff
• transaction 3: a letter dated 23 October 2001 sent by the school principal to a police officer
The Tribunal resolved to deal with transactions 1 and 3 first; both involved both respondents. Transaction 2 was agreed at those planning meetings to only involve the respondent agency DET. The Tribunal has already held hearings in relation to transactions 1 and 3, but final judgment has been reserved, following two interim appeals requiring further consideration of some matters.
In June 2004 the Tribunal made directions to commence the review of ‘transaction 2’. In July 2004 GA filed his submissions, alleging breaches by both respondent agencies. In September 2004 the Tribunal heard and reserved its decision on whether or not the ‘transaction 2’ issues could be pursued against the respondent police.
Then later in September 2004 the Tribunal received a fax from GB, GC, GD and GE, indicating that they did not wish their applications to continue, and that they had felt that way since June 2003. In October 2004 the Tribunal dismissed the proceedings as they related to GB, GC, GD and GE, and called for further submissions on what remained of GA’s application in relation to ‘transaction 2’.
Who is a “person aggrieved”?
Only “a person aggrieved” may seek an internal review of conduct under the PPIP Act, and subsequent review by the Tribunal.
GA asserted that he was “a person aggrieved” by the conduct of both the respondents, in relation to their handling of the personal information of all five of the original applicants, and thus sought to continue the proceedings with respect to all the original conduct identified by the five applications.
The Tribunal found that GA was limited to pursuing review of only that conduct which he had previously identified as being his personal application (i.e. the conduct that affected his personal information), not the conduct originally identified as being the subject of the other four separate applications by the other four parties. This was because in relation to the latter four applications, GA had only been acting as a “representative or agent” of the persons aggrieved, and this role had now been stripped of him [23]. GA had not personally sought an internal review of any conduct other than that which affected his personal information.
The Tribunal then reviewed the scope of the remaining application yet to be heard – the ‘transaction 2’ matters. The Tribunal determined that GA could not seek to re-expand on the issues at the hearing, as he had previously agreed to narrow them at various planning meetings. Nor could he seek to pursue allegations against the second respondent (NSW Police), given previous Tribunal rulings on the issue.
Robinson JM noted “Applicants should not lightly be permitted to depart from concessions (or directions) made at planning meetings” [26].
The Tribunal found that the ‘transaction 2’ matters related to conversations about GE, not GA, and thus not the subject of GA’s application. The Tribunal therefore dismissed the application as far as it related to the ‘transaction 2’ matters.
The Tribunal then reviewed the remaining ‘transaction 3’ matters (remitted following earlier appeals), and found that three of the four pieces of information at issue related to GE and one of the sons, not GA. Robinson JM set a new hearing date to hear submissions on the one remaining item which did relate to GA.
Anna Johnston, Salinger & Co
KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18
NSW Administrative Decisions Tribunal, Robinson JM, 4 February 2005
Exemption for Part 8A police complaints. Standing of father.
Background
This matter is a re-determination of an earlier case (KO & KP v Police [2004] NSWADT 4), following a successful appeal by the applicants (KO & KP v Police [2004] NSWADTAP 21).
KO was arrested for smoking at a railway station. He made a complaint about the police’s handling of his arrest, alleging, amongst other things, unlawful arrest, false imprisonment, and assault by police officers. In the course of conducting the internal investigation in that matter (known as a Part 8A investigation), the police disclosed information about KO to his employer. KO subsequently lost his job. KO’s father, KP, then financially supported his son for a year.
KP lodged a privacy complaint (a request for an internal review) on behalf of himself and his son KO, as “aggrieved persons”.
The inspector conducting an investigation into KO’s complaint about police misconduct made a number of enquiries with KO’s employer about KO’s status as an employee, in order to establish his credibility as a witness, since KO had alleged not only police misconduct but also criminal conduct by police officers.
The inspector told KO’s employer that he was investigating a complaint made by KO about police conduct in relation to an incident involving smoking at a railway station. It appeared that the inspector also informed KO’s employer that KO had been arrested on the particular date.
KO’s employer subsequently checked his payroll records and discovered that KO had claimed to have been at work on the day he was actually arrested and held in police custody throughout working hours. One week later KO was let go from his job as a casual trades assistant, although his employer claimed it was because the work was complete, rather than because of the information about his arrest or the discovery about the payroll information.
However it was later discovered that KO had not claimed to have been working on the day of his arrest; a combination of computer and human error had caused the payroll records to record the hours he had worked the previous day as if they were the day of his arrest.
Scope of conduct at issue
KP’s internal review application mentioned IPPs 1, 2, 3, 4, 9, 10 and 11. However the only ‘conduct’ identified in the application was the transfer of information from a named police officer to KO’s employer.
The Tribunal accepted the respondent’s view that the application did not concern the collection or storage of the personal information.
Was the information “personal information”?
The Tribunal found the information at issue was not “personal information” because it was information “arising out of a complaint made under Part 8A of the Police Act 1990” (s.4(h) of the PPIP Act).
Robinson JM found that the information was both “contained within” the Part 8A complaint (the information about the arrest of KO) and “arose out of” the Part 8A complaint (the information that KO and KP had complained about police misconduct) [42]. Its disclosure was “a necessary part of the investigation itself”, and thus “it plainly ‘arose out of’ the said investigation” [42].
Thus the Tribunal found the information at issue was not “personal information” as protected by the PPIP Act. The matter was therefore dismissed.
Causation
Although not necessary to determine the causation issue, the Tribunal noted that he would have found that the alleged breach did not result in the loss of KO’s job.
Standing of the father
Although not necessary to determine this matter, the Tribunal also noted that it would have been mindful to find that KP had no standing in the Tribunal. The Tribunal noted that in order to have standing in the Tribunal, a person must first have made a request for an internal review. Although KP had lodged the request for an internal review in this case, it was “on behalf of” KO [54]. Thus only KO (or his agent) had standing to appear in the Tribunal, not KP on his own behalf.
Commentary
Perhaps not surprisingly, at the time of writing, this matter is pending a further appeal.
In the earlier appeal decision about the Part 8A exemption from the definition of “personal information”, KO & KP v Police [2004] NSWADTAP 21, the Appeal Panel suggested at [30] that the information had to have “resulted, proceeded or originated from a complaint made under Part 8A”.
The appeal may review whether or not the information that KO had been arrested – a fact which in time preceded the making of his Part 8A complaint – could genuinely be described as having “resulted, proceeded or originated from a complaint made under Part 8A”, in the sense of its original provenance being the Part 8A complaint.
Anna Johnston, Salinger & Co
NSW Administrative Decisions Tribunal, President O’Connor, 22 February 2005
Dismissed because no internal review request lodged first. Jurisdiction of Tribunal can include an agency’s inaction by refusing to deal with a request for an internal review.
Ms NZ lodged an application for review in the Tribunal prior to seeking an internal review by the respondent police. Although the respondent subsequently launched an internal review, the Tribunal dismissed this application as lacking jurisdiction.
President O’Connor noted that the Act requires a respondent agency “to be given some opportunity to consider the matter of concern and to take action” [at para 8] before an applicant can take their complaint to the Tribunal.
President O’Connor also noted that the particular trigger for jurisdiction is that an applicant must first make an application for internal review, and that they be dissatisfied with the findings of the review or the action taken by the agency. O’Connor noted that “the action taken” in this sense could include “inaction by refusing to deal with the matter”, and he referred to s.53(6) for support of his view [at paras 7-8]. (Section 53(6) allows an applicant to approach the Tribunal if more than 60 days has lapsed since lodging their request for internal review with the agency.)
This statement would appear to address the confusion caused by previous cases such as GA v Police [2004] NSWADT 254, in which Deputy President Hennessy suggested that “the action taken” referred only to action taken after findings have been made by the respondent at the completion of an internal review. Hennessy did not make any reference to the ’60 day rule’ in her judgment; nor did she address the implication that respondents could thwart every application by simply never conducting (or at least never completing) an internal review.
Anna Johnston, Salinger & Co
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URL: http://www.austlii.edu.au/au/journals/PrivLawPRpr/2005/21.html