Bilal v Australian Information Commissioner [2026] FCA 376

1. The error that is conceded by the Commissioner is that the delegate considered that the privacy complaint could appropriately be dealt with by the Australian Financial Complaints Authority, without first making inquiries as to whether the Authority was an appropriate external dispute resolution scheme to investigate the primary complaint. The Commissioner submits that the existence of this fact was critical to the making of the decision, and therefore there was a lack of evidence to justify making the decision at the time it was made contrary to ss 5(1)(h) and 5(3)(b) of the ADJR Act, citing Curragh Queensland Mining Ltd v Daniel [1992] FCA 36 (AustLII citation [1992] FCA 44); 34 FCR 212 at 220-1 per Black CJ (Spender and Gummow JJ agreeing); Baggaley v Attorney-General (Cth) [2025] FCA 968 at [31]- [35] per Rangiah J.
2. The applicant is adamant that the decision should not be quashed or set aside on the basis of that error. It is not apparent why it matters so much to the applicant what the basis of the error is once it is accepted that the decision must be set aside.
3. It is not necessary to consider that somewhat sterile issue any further because there is at least one obvious error with the decision that is relied on by the applicant which forms a proper basis to quash it or set it aside under s 16(1)(a) of the ADJR Act. That is that the Commissioner fundamentally misunderstood and misconstrued the nature of the complaint - it was not a complaint about Procare's refusal to delete private information, but about its refusal to provide that information to the applicant. Such an error can be classified under more than one of the grounds set out in s 5(1) of the ADJR Act, including that the decision was not authorised by the enactment in pursuance of which it was purported to be made (s 5(1)(d)). That is because the relevant enactment, s 41(1) of the Privacy Act, provides that the Commissioner may decide not to investigate "an act or practice about which a complaint has been made". It is a miscarriage of that power to decide not to investigate some other act or practice which is not the subject of the complaint.
4. The Commissioner's decision must therefore be set aside. There is no dispute about that.
5. The Commissioner's pre-decision conduct in failing to give the applicant an opportunity to make submissions on whether the complaint should not be investigated should also be reviewed under s 6(1)(a) of the ADJR Act, and a declaration made in relation to it under s 16(2).
6. A decision under s 41 of the Privacy Act not to investigate a complaint, or not to investigate a complaint any further, is a decision that is capable of an adverse effect on the complainant's rights as an individual (as distinct from a member of the public), being their right to have their complaint investigated under s 40. There is also nothing in the Privacy Act indicating any legislative intention to deny the application of procedural fairness to such a decision. A decision under s 41 is therefore a decision that is conditioned on the observance of procedural fairness: Disorganized Developments Pty Ltd v South Australia [2023] HCA 22; 280 CLR 515 at [33]- [34]; Madzikanda v Australian Information Commissioner [2023] FCA 1445; 330 IR 387 at [28] per Wheelahan J.
7. I am not satisfied that the four months that it took the Commissioner to make the decision constitutes an unreasonable delay: Patrick v Australian Information Commissioner [2024] FCAFC 93; 304 FCR 1 at [37] per Bromwich, Abraham and McEvoy JJ; ASP15 v Commonwealth [2016] FCAFC 145; 248 FCR 372 at [21]- [23] per Robertson, Griffiths and Bromwich JJ. However, the Commissioner breached the requirements of procedural fairness by making the decision that the complaint not be investigated without giving the applicant any opportunity to be heard, particularly on the question of whether his complaint was suitable for reference to an external dispute resolution scheme. That was a material error, as the decision could realistically have been different had the applicant been given the opportunity to correct the Commissioner's misconception as to the availability of an alternative dispute resolution process.

1. As detailed above, in addition to the quashing of the decision and the remitting of the complaint to the Commissioner to be dealt with in accordance with the law, the applicant seeks a "direction" that the complaint not be declined under s 41 of the Privacy Act but instead be determined under s 52. The applicant submits that such a "direction" is necessary in order to prevent the Commissioner from again deciding under s 41 not to investigate the complaint, or not to investigate it any further.
2. It would be quite wrong of the Court to impose such a limitation on the decision-making power of the Commissioner. By s 41 of the Privacy Act, Parliament has reposed in the Commissioner the authority to decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made under s 36. The Court is not in a position to determine in advance whether there is any lawful basis upon which that power might be exercised by the Commissioner. Prima facie, there may be innumerable reasons for the exercise of the power. The Commissioner must be left to consider and deal with the applicant's complaint in accordance with the law including, if there is a proper basis to do so, by the exercise of the power under s 41.
3. It follows that I will not make the "direction" that the applicant seeks in relation to the complaint being dealt with under s 52.
4. The applicant also seeks a declaration that his complaint is a valid complaint under s 36 of the Privacy Act. However, whether or not it is valid is not in dispute - the Commissioner accepts, and always has accepted, that the complaint is valid. The applicant submits that the declaration nevertheless has utility because it will serve to confirm that the complaint has not been lawfully disposed of and that the Commissioner must still consider it. That purpose, however, is achieved by the relief already referred to. There is therefore no basis or good reason to make the declaration and in the exercise of my discretion I decline to do so.
5. The applicant seeks his costs of the application. Because he is a litigant in person and has not had a lawyer on the record, it is not clear what costs he may be able to claim other than the filing fee in respect of the originating application: Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; 269 CLR 333 at [1]. Because of that, the Commissioner submits that the costs order should grant the applicant only that filing fee. I disagree. What the applicant is entitled to by way of costs, once he has a costs order in his favour, is a matter for taxation and is not to be enquired into or determined at this stage. The applicant should accordingly have his costs.

1. For those reasons, in addition to making a declaration that the conduct of the respondent in failing to afford the applicant procedural fairness prior to making a decision under s 41 of the Privacy Act 1988 (Cth) was unlawful, I will make the following orders:

(1) The decision of the respondent dated 22 August 2025 declining to investigate the applicant's complaint dated 24 April 2025 be set aside under s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), and the complaint be referred to the respondent under s 16(1)(b) for decision according to law.

(2) The respondent pay the applicant's costs of the application.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.