Kant v Australian Information Commissioner

Re Kant [2025] HCASJ 40

Kant v Australian Information Commissioner [2024] FCA 599

Kant v Australian Information Commissioner (No 2) [2025] FCA 76

Kant v Principal Registrar of the Federal Court of Australia [2025] FCA 274

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421

Rana v Australian Information Commissioner [2023] FCAFC 17

Administrative and Constitutional Law and Human Rights

1. A writ of certiorari issue, removing into this court and quashing the decision made by the respondent in respect of the applicant on 12 September 2023.
2. A writ of mandamus issue, requiring that the respondent determine according to law the complaint or enquiry that was the subject of the decision referred to in order 1.
3. The respondent pay the applicant's costs in an amount to be assessed in default of agreement in accordance with the court's costs practice note (GPN-Costs).

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

1. Part V of the Privacy Act 1988 (Cth) (the "Act") establishes a framework pursuant to which the respondent (hereafter, the "Commissioner") is authorised (and is generally required) to investigate complaints by individuals about acts or practices that may amount to interferences with their privacy. Section 7 of the Act delineates the "acts or practices" with which the Act is concerned. It includes carve outs for - at the risk of oversimplifying - various acts and practices that are engaged in in connection with the intelligence-gathering and national security functions of the Australian Government.
2. By a further amended originating application dated 24 January 2024, Mr Kant seeks prerogative relief against the Commissioner under s 39B of the Judiciary Act 1903 (Cth) ("Judicial Review Application"). The relief that Mr Kant seeks is directed to a decision made by a delegate of the Commissioner with respect to a complaint (or, perhaps, an enquiry) that Mr Kant had submitted to her office (the "OAIC") on or about 22 August 2023 (the "Complaint/Enquiry"); more specifically, a decision by which the Commissioner (via her delegate) resolved not to investigate it (hereafter, the "Delegate's Decision").
3. That outcome was communicated to Mr Kant in a letter from the delegate dated 12 September 2023. That letter outlined the delegate's understanding that Mr Kant was complaining about a mishandling of his personal information by the Australian Security Intelligence Organisation ("ASIO"). Complaints about interferences with a person's privacy by ASIO were not, the delegate explained, competent to be investigated by the Commissioner under the provisions of the Act.
4. The time that has elapsed since the filing of the Judicial Review Application is attributable - at least in part - to interlocutory applications made by Mr Kant and dismissed by the court in Kant v Australian Information Commissioner [2024] FCA 599 (Snaden J) and Kant v Australian Information Commissioner (No 2) [2025] FCA 76 (Snaden J). After those interlocutory processes had unfolded, I referred the proceeding to a registrar for case management. That referral was made in a context where the number of affidavits affirmed by Mr Kant in this proceeding had reached 36; and he and the Commissioner had also filed multiple rounds of submissions.
5. After Mr Kant failed to appear before him at a case management hearing listed on 12 May 2025, the registrar made orders:

(1) setting out the documents on the court file upon which Mr Kant and the Commissioner were taken to rely in the final disposition of the Judicial Review Application; and

(2) providing for the Judicial Review Application to be determined by the docket judge on the papers.

1. As the registrar contemplated, and with respect, it is appropriate that the Judicial Review Application be determined on the papers: the Federal Court of Australia Act 1976 (Cth) ("FCA Act"), s 20A(2)(c). Even so, it was necessary for the court to seek clarification from the parties as to a matter that appeared to arise on the face of the material and which had not been addressed in the parties' written submissions (or at least, in the Commissioner's submissions). That matter concerned whether (and if so, how) it was or might have been reasonably open for the delegate to characterise the Complaint/Enquiry as being exclusively about interferences with the applicant's privacy by ASIO; and why that might (or might not) be of significance. On 22 September 2025, I instructed my associate to raise that matter with the parties, who subsequently availed themselves of the opportunity to provide a further round of written submissions addressed to it.
2. For the reasons that follow, I accept that the Commissioner erred by characterising the Complaint/Enquiry as pertaining solely to conduct attributable to ASIO and that that error was one of jurisdiction, which warrants the grant of prerogative relief. The other grounds upon which Mr Kant relies are not made good. The Delegate's Decision should be quashed and remitted to the Commissioner for consideration in accordance with the law.

1. The essential facts of the matter emerge on the face of correspondence exchanged as between Mr Kant and the OAIC. Most of that correspondence is contained in a 30-page bundle of documents that was filed by the Commissioner on 23 February 2024 (the "Commissioner's bundle").
2. That said, the affidavits that Mr Kant has filed in this matter - which, together with their annexures, run to over 600 pages - annex a small number of documents directly relevant to the OAIC's treatment of the Complaint/Enquiry.
3. Mr Kant's affidavits also annex correspondence about other complaints and enquiries that he had lodged with various government agencies, including the OAIC, from time to time. Those complaints and enquiries are numerous: perhaps illustratively, his correspondence about the Complaint/Enquiry reveals that there have been at least 14 other matters that he has raised with the OAIC. The relevance of that broader material to the Judicial Review Application was not explained and I have not had reference to it.
4. The Complaint/Enquiry assumes the form of a letter that is marked with the reference code "XQL636PW". Mr Kant provided it to the OAIC as an attachment to an OAIC webform for "general enquiries about the roles and functions of the [OAIC] and the laws it regulates" (emphasis original). The Complaint/Enquiry commenced as follows (emphasis original):

Attn: Australian Information Commissioner

RE: Request to investigate under 12B(2) of the Privacy Act 1988

Sir/madame,

This is a request to investigate an interference, by multiple regulated entities, with my rights as prescribed by the International Covenant on Civil and Political Rights (ICCPR). These were interfered with by public officials and other persons in conspiracy to hide evidence of corruption.

The matter involves:

1. Swinburne University of Technology

2. One or more health practitioners

3. Victoria Police

4. One or more intelligence agencies

5. the Department of Defence

6. One or more former or serving members of parliament

7. South Australia Police

8. the Australian Federal Police

9. the Commonwealth Ombudsman

10. the Independent Broad-based Anti-corruption Commission (IBAC)

11. The Department of Home Affairs and/or its predecessors

12. the Attorney-General's Department

13. a "contracted service provider" for a government contract

14. the Holmesglen Institute of TAFE

Please find, secure, and make discoverable for relevant court proceedings all information about interference, by public officials and persons acting in concert with public officials, with my rights as prescribed by the ICCPR that exists with:

• entities as listed above

• persons or other entities who came to have knowledge or possession of information about me by way of their association with one or more entities as listed above

Insofar as it also constitutes an interference with my rights as prescribed by the ICCPR, please find all information about use of regulatory or administrative processes inconsistently with the provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

I expect the pertinent information about the Commonwealth Ombudsman exists at the Department of Defence and/or at a relevant intelligence agency (or possibly at the OAIC). The relevant search query is "reasonable minds may differ".

I will require this information to establish legal and/or equitable claims. The intended use of relevant information for court proceedings is not to limit the scope of the investigation.

1. The letter briefly referred to its attachments, to the content of which I shall shortly turn. In this regard Mr Kant relevantly stated that:

The attached file 20230702-IGIS webform notification is my record of information that I provided by webform to the IGIS. The attached file 20230418 CIA probe webform information is my record of information that I provided by webform to the Central Intelligence Agency, United States. The rest of the attachments don't require individual description.

1. The balance of the letter does not obviously assume present relevance, save, perhaps, for a section on the "interpretation of [Mr Kant's] request", which relevantly reads:

...

• "information about interference ... with my rights as prescribed by the ICCPR" is the subset of information about me that has to do with an interference (or potential interference) with my rights as prescribed by the ICCPR

• The relevant entities here are:

• each of the above listed entities and their various subsidiaries
• the collective commissions, inspectorates, regulators and such that are investigating the matter or elements of the matter

1. I turn now to the attachments to the Complaint/Enquiry. On their face, they comprise of copies of:

(1) an online contact form that Mr Kant had submitted to the United States Central Intelligence Agency (the "CIA") on 18 April 2023, indicating that he wished to sell to "potential buyers" information relating to "Thai foreign intelligence service persons working with CIA and (presumably) MI6 persons to collect information about an Australian citizen";

(2) a letter from Mr Kant to ASIO, dated 18 May 2023, requesting access to certain records that he believed that that agency held about him;

(3) an online complaint that Mr Kant had filed with the Inspector-General of Intelligence and Security (the "IGIS") on 2 July 2023, complaining about "multiple and repeated interferences with my privacy by one or more intelligence agencies" and requesting "copies of all documents held by Australian intelligence agencies that contain information about me"; and

(4) a letter from the IGIS to Mr Kant, dated 21 August 2023, writing to him "regarding your correspondence to this Office concerning the alleged actions of [ASIO]" (which, it should be noted, does not appear to be attached to the Complaint/Enquiry) and confirming that the IGIS would not inquire further into the matter because the IGIS had decided that further inquiry was not warranted.

1. On 22 August 2023, Mr Kant received a brief email from the OAIC, confirming receipt of his "enquiry" and providing a likely timeframe for response. That email provided the OAIC reference "EN23/09186".
2. On 5 September 2025, Mr Kant received another pro forma email. That email, however, was directed to the prospect that Mr Kant had made a "privacy complaint" and set out the procedure for its allocation and resolution. It provided the OAIC reference "CP23/02755" and invited correspondence about the complaint to an email address, "early.resolution@oaic.gov.au".
3. Mr Kant subsequently sent two further emails to that email address. By the first, dated 5 September 2023, he noted that the reference "CP23/02755" did not match any of those in his records and sought clarification as to "who [sic] the CP23/02755 notification is in regards to".
4. By the second, sent on 7 September 2025, Mr Kant sought to "[attach] a new document for enquiry EN23/09186" entitled "20230906 ASIO letter sent.pdf". A letter from Mr Kant to ASIO dated 6 September 2023 is contained elsewhere in the materials. That letter was headed "Re: Complaint - personal information" and said as follows (formalities omitted):

This is a complaint about the handling of my request to ASIO for access to my personal information.

On 18 May 2023, I requested access to ASIO records about myself. ASIO has not responded to my request. Be advised that I consider this outcome to be unsatisfactory.

1. It appears that Mr Kant next heard from the OAIC in relation to the Complaint/Enquiry on 12 September 2023 - that is, when he received notice of the Delegate's Decision. The header to that letter states "Our reference: CP23/02755 & EN23/09186". There, the Commissioner's delegate said as follows:

Thank you for your complaint dated 5 September 2023 about the Australian Security Intelligence Organisation (ASIO), in which you claim ASIO has mishandled your personal information.

The Commissioner has the power to investigate complaints made under s 36 of the Privacy Act 1988 (Cth) (the Privacy Act). However, a privacy complaint must be made about an act or practice that may be an interference with privacy, as defined in the Privacy Act.

Section 13 of the Privacy Act defines interferences with privacy as acts or practices engaged in that are contrary to the Australian Privacy Principles (APPs), by agencies or organisations (APP entities). However, s 7(1A)(a) of the Privacy Act states that any act or practice done by ASIO is excluded from coverage of the Privacy Act. Therefore, ASIO is an exempt agency for the purposes of the Privacy Act.

This means that the OAIC does not have the authority to investigate the handling of your personal information by ASIO, and its actions cannot be considered an interference with your privacy as defined in the Privacy Act.

Consequently, we cannot treat this matter as a privacy complaint as it does not meet the requirements of s 36(1) of the Privacy Act. Accordingly, we cannot investigate this matter and our file is now closed.

1. Thereafter unfolded a number of exchanges between the delegate and Mr Kant, in which he sought to challenge the Delegate's Decision and invited its reconsideration. Importantly, in the first such email, sent by Mr Kant to the delegate on 12 September 2023, Mr Kant prefaced his arguments with his understanding that "CP23/02755...is limited to the privacy aspect of EN23/09186 as it relates to ASIO".
2. Those exchanges did not result in any change to the Delegate's Decision.

1. On 25 September 2023, Mr Kant lodged an originating application for relief under s 39B of the Judiciary Act 1903 (Cth), which was subsequently (and most recently) amended by force of the Judicial Review Application. It is convenient to set out the substance of the Judicial Review Application in its entirety:

On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant applies for the following relief under section 39B of the Judiciary Act 1903:

1. Investigation by the Information Commissioner of the matter described in the applicant's letter sent on 22 August 2023.
2. Further action by the Information Commissioner as described in the applicant's letter sent on 22 August 2023, as amended to omit the original first reference to NACC on its second page and with the same reinserted immediately under the subsequent reference to IBAC.
3. Orders commanding the Information Commissioner to refrain from taking action as in (1) or (2), unless and until the Applicant requests the Information Commissioner to commence doing so.
4. Damages, including exemplary damages. claimed against the Commonwealth in respect of tortious conduct of intentional nature in mens rea.

PARTICULARS

1. The grounds for review are as given in the Applicant's correspondence with Office of the Australian Information Commissioner (OAIC).
2. The OAIC intentionally narrowed the issue in dispute to a position which is doomed to fail.
3. The OAIC declined to revise their position and informed the Applicant of a right to seek judicial review when he brought the error-of-law to their attention.
4. The Respondent intentionally coerced the Applicant's continuing participation in this matter with implied threat of costs on discontinuance.
5. The Respondent committed tortious abuse of process.
6. The Respondent attempted serious interference with the privacy of the Applicant.
7. The Respondent knew. or ought to have known. his or her attempt to continue this proceeding without continuing voluntary consent of the Applicant to constitute serious interference with his privacy.
8. The Respondent acted in his or her capacity as officer of the Commonwealth.
9. The Commonwealth is directly liable in tort.

1. On 19 December 2023, Ms Elena Arduca, the Commissioner's solicitor, wrote to Mr Kant to seek clarification about the decision that he sought to have reviewed. She relevantly said:

...

1. Your application refers to a letter from you to the respondent dated 22 August 2023. The respondent received a letter from you on or around 22 August 2023 with the reference code: XQL636PW. Please confirm this is the letter you are referring to in your application.

2. As you are aware, the respondent wrote to you on 12 September 2023 advising that it had decided to close your complaint under s 36(1) of [the Act]. Please confirm this is the decision the subject of your application for judicial review. A copy of the 12 September 2023 letter is enclosed.

1. Mr Kant responded on that same day, answering each of those questions in the affirmative.
2. As noted above ([22]), the grounds for the Judicial Review Application are "as given in [Mr Kant's] correspondence with the [OAIC]". Appreciating the challenges that attend self-representation, that form of summary has required an unhelpful degree of interpolation by the court, an exercise not materially assisted by Mr Kant's prolix submissions. It seems plain, however, that each ground of review is directed to the delegate's finding that the Complaint/Enquiry could not (and would not) be investigated by the Commissioner because it does not meet the requirements of s 36(1) of the Act.
3. The first such ground is based on Mr Kant's view that ss 36 and 40 of the Act (and the interpretative provisions which affect their operation) are not controlling of whether the Commissioner could investigate a complaint about interferences to his privacy. On Mr Kant's contention, s 12B(2) of the Act independently authorises the Commissioner to investigate interferences with rights set out in the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (the "ICCPR"). Mr Kant argues that "[s ]7(1A)(a), and any other provision that may exclude an intelligence or security agency from operation of [the Act], is void"; and further that "[t]he actions (and conduct, generally) of ASIO can be considered an interference with my privacy otherwise than as defined in Part III of [the Act]."
4. By his second ground, Mr Kant contends that the OAIC's reliance on s 7(1A)(a) was, in any event, misplaced. He stated in this respect that (emphasis original):

[section] 7(1A)(a) of the Privacy Act says:

(1A) Despite subsections (1) and (2), a reference in this Act (other than section 8) to an act or to a practice does not include a reference to the act or practice so far as it involves the disclosure of personal information to:

(a) the Australian Security Intelligence Organisation;

Disclosure of personal information to ASIO is not the issue. Please revise your position accordingly.

1. In his submissions in reply, Mr Kant sought to explain the effect of that email (reference omitted):

On the ground that disclosure of personal information to ASIO is not the issue of the 22 [August] 2023 request, the Applicant sought the Respondent reconsider the decision to not investigate.

The Applicant's 22 [August] 2023 letter to the Respondent has nothing to do with grievance concerning disclosure of information to The Australian Security Intelligence Organisation (ASIO). The Respondent's decision he discloses in the 12 [September] 2023 letter is plainly wrong.

Substantially better reason to refuses to act on the Applicant's 22 [August] 2023 letter exists in the second-to-next subsection, of the same item of legislation, beneath the clause put forward as the reason for refusal...

At the 20 [December] 2023 case management hearing, the solicitor for the Respondent misinformed the Court of the subject of this proceeding being a complaint concerning ASIO and having agreed the same with the Applicant.

1. By that last submission, Mr Kant apparently refers to the following exchange between the parties and a registrar of the court at a case management hearing that took place on 20 December 2023:

MS ARDUCA: ...As I understand it, and I have communicated with the applicant about this, there was an - there was a privacy complaint made to the Commissioner in relation to alleged activities of ASIO, and the Commissioner declined to investigate on the basis that ASIO is not an entity that's subject to the Privacy Act... and made that decision to decline. And I communicated with Mr Kant...

...

THE REGISTRAR: Is what Ms Arduca has put correct? Is that the way the application is now cast? Is this an application for judicial review?

MR KANT: Not any more.

THE REGISTRAR: So what is it now?

MR KANT: Not necessarily. There are - so first of all, I've never complained about ASIO. The request for investigation was in the letter that you've seen, where I say one or more intelligence agencies has interfered with my rights, including many, many other organisations that are not intelligence agencies. The Office of the Australian Information Commissioner calls it - that's a complaint about ASIO interfering with my privacy. And after that, the Australian Information Commissioner narrowed issues in dispute to a position which is doomed to fail despite there being a great alternative in the very same section of the Act.

1. The particulars to the Judicial Review Application and Mr Kant's written submissions agitate a number of other issues broadly relating to the Commissioner's conduct of the proceeding. They are not about defects that attend (or might attend) the Delegate's Decision - being the decision under review - and it is not necessary to deal with them.

1. The Commissioner's submissions set out a useful summary of the applicable legislation, which - with some embellishment - I gratefully adopt. That summary commences (emphasis original):

...

1. Part V of [the Act] deals with complaints and investigations about acts or practices that may be an interference with the privacy of an individual. If a complaint is made in accordance with s 36(1) or (2), the [Commissioner] is required [by s 40(1) of the Act] to investigate the act or practice except in certain circumstances.
2. Section 36(1) permits the making of an individual complaint about an "act or practice that may be an interference with" the privacy of the individual. That concept - interference with the privacy of an individual - is the subject of s 13 of the Act, which relevantly provides:

13 Interferences with privacy

(1) An act or practice of an APP entity is an interference with the privacy of an individual if:

(a) the act or practice breaches an Australian Privacy Principle in relation to personal information about the individual; or

(b) the act or practice breaches a registered APP code that binds the entity in relation to personal information about the individual.

1. To the above, I would add that ss 36(3) and (5) of the Act respectively require that the complaint be in writing and "specify the respondent to the complaint".
2. The Commissioner's summary continues (emphasis original, references omitted):
   1. The acts and practices to which [the Act] applies or disapplies are clarified in s 7. Section 7(1) provides:

Except so far as the contrary intention appears, a reference in the Act (other than section 8) to an act or to a practice is a reference to:

(a) ... an act done, or a practice engaged in, as the case may be, by an agency ... other than:

(i) an agency specified in any of the following provisions of the Freedom of Information Act 1982:

...

(B) Division 1 of Part I of Schedule 2;

...

(b) [paras (b) to (ee) specify certain acts or practices]

...

but does not include a reference to an act done, or a practice engaged in, in relation to a record that has originated with, or has been received from:

(f) an intelligence agency...

1. ASIO is an "exempt agency" listed in Division 1 of Part 1 of Schedule 2 to the Freedom of Information Act 1982 (Cth). ASIO is also an "intelligence agency" as defined in s 6(1) of [the Act].

2. Section 7(1A)(a) of the [the Act] provides that the Act (other than s 8) does not apply to acts or practices involving disclosure of information to certain agencies, including ASIO.

3. Section 7(2) provides for the application of the Act otherwise than in respect of the Australian Privacy Principles (APPs):

Except so far as the contrary intention appears, a reference in this Act (other than section 8) to an act or to a practice includes, in the application of this Act otherwise than in respect of the Australian Privacy Principles...a reference to an act done, or a practice engaged in, as the case may be, by an agency specified in Part I of Schedule 2 to the Freedom of Information Act 1982 or in Division 1 of Part II of that Schedule other than:

1. The Commissioner's submissions then summarise s 12B of the Act, which relevantly provides:

12B Severability - additional effect of this Act

(1) Without limiting its effect apart from this section, this Act has effect in relation to the following (the regulated entities) as provided by this section:

(a) an agency;

(b) an organisation;

(c) a small business operator;

(d) a body politic.

...

(2) This Act also has the effect it would have if its operation in relation to regulated entities were expressly confined to an operation to give effect to the following:

(a) the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23), and in particular Articles 17 and 24(1) of the Covenant;

1. As noted by the Commissioner's submissions, art 17 of the ICCPR reads as follows:
   1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
   2. Everyone has the right to the protection of the law against such interference or attacks.

1. Article 2.3 of the ICCPR (which is referred to in Mr Kant's submissions) reads:

Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

1. It is not possible to articulate 'rigid classifications' of jurisdictional error and its categories are not closed: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321, 325-6, [3], [5] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). However and relevantly for present purposes, the circumstances in which such an error might arise include circumstances in which a decision maker, by reason of having misunderstood the applicable law, considering a wrong question or reasoning in a way that is (legally) unreasonable, determines not to exercise a particular jurisdiction: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, 455 [81] (Nettle and Gordon JJ).
2. It is convenient to deal with the second of Mr Kant's grounds first.

1. Mr Kant's second ground of challenge seems to have two dimensions. The first is that the Commissioner's reliance on s 7(1A)(a) of the Act was misplaced, in circumstances where Mr Kant was not complaining about the disclosure of information to ASIO.
2. The Commissioner appears to accept that criticism, but submits that any such error falls short of jurisdictional error for want of materiality. Her submissions in that respect are as follows (references omitted):
   1. The applicant contends that the decision is flawed as the respondent has narrowly interpreted his complaint, which did not involve disclosing information to ASIO.
   2. The delegate characterised the applicant's complaint as being about ASIO's handling of the applicant's personal information. The delegate considered that ASIO is an exempt agency for the purposes of the Privacy Act and referred to s 7(1A)(a) of the Act, which exempts acts or practices involving disclosure of information to ASIO.
   3. Several subsections together provide a comprehensive exemption for ASIO, covering its acts (s 7(1)(a)(i)(B)) (including in respect of the application of the Privacy Act otherwise than in respect of the APPs: s 7(2)(a)), information originating from ASIO (s 7(1)(f)), and information provided to ASIO (s 7(1A)(a)).
   4. As a matter of principle, the delegate's ultimate assessment of whether the Privacy Act applies to acts or practices of ASIO was correct by reason of sub-ss 7(1)(a)(i)(B) and 7(2)(a). The applicant's complaint accordingly did not meet s 36(1) of the Act, because it did not relate to an act or practice to which the Privacy Act applies.
   5. Any error of the delegate in referring to an incorrect sub-section was not material and did not constitute a jurisdictional error because the decision could not realistically have been any different had the correct section been referred to.

1. That submission should be accepted. The delegate had interpreted the Complaint/Enquiry as being about ASIO's "mishandling [of Mr Kant's] personal information". Save for in one respect - to which I will shortly turn - that characterisation cannot be impugned as unreasonable or illogical. The OAIC had received a request to investigate interferences with Mr Kant's privacy by (amongst others) "one or more intelligence agencies". In support of that request, it had been provided with letters from Mr Kant to ASIO requesting copies of records about him and complaining when those records were not forthcoming. It was open to the delegate to construe the Complaint/Enquiry as being (at least in part) about ASIO's handling of Mr Kant's personal information (indeed, such a construction is plainly fair).
2. Reliance by the delegate upon s 7(1A)(a) of the Act as the source of the exemption was misplaced. However, Mr Kant's complaint about ASIO was not, in any event, able to be investigated by the Commissioner due to the operation of other subsections of s 7. Of particular relevance is s 7(1)(a)(i)(B), which excludes (subject to any "contrary intention" appearing in the Act) acts done or practices engaged in by ASIO as an agency specified in the Freedom of Information Act 1982 (Cth), sch 2 pt I div 1. The Act does not define "[an] act done or practice engaged in". However, the activity about which Mr Kant complained - being a failure to disclose his personal information on request (which, for regulated entities not the subject of an exception, is generally contrary to the Act, sch 1, Australian Privacy Principle 12.1) - quite readily meets the description of an "act".
3. I have not been directed to any part of the Act which might manifest an intention contrary to s 7(1)(a)(i)(B). To the extent Mr Kant might (by the general tenor of his submissions) point to s 12B(2) of the Act, I will turn to the general effect of that provision in due course. As will be apparent, it does not operate to manifest any intention on the part of the Commonwealth Parliament that the Act cover acts done or practices engaged in by ASIO; and certainly not in the face of a specific provision to the contrary.
4. In that respect, any error affecting the Delegate's Decision was not material.
5. That, however, does not address the apparent lack of correspondence between the Complaint/Enquiry - which alleged interference with Mr Kant's privacy by "multiple regulated agencies" - and the delegate's characterisation of it as being solely a claim that ASIO had mishandled his personal information. It was in those circumstances that, on 22 September 2025, the court wrote to the parties in the following terms (formalities omitted):

I refer to the above-mentioned proceeding and to Registrar Luxton's orders dated 12 May 2025. Amongst other things, those orders provide for the proceeding to be determined by the docket judge on the papers.

Justice Snaden has asked that I raise with you a matter that is not addressed in the written submissions (at least not in the respondent's written submissions) and is - at least potentially - enlivened by the applicant's grounds for review and submissions.

That matter concerns the characterisation that the delegate, in her decision the subject of the application for judicial review, gave to the applicant's complaint dated 22 August 2025.

In the respondent's submissions, it is said that "the delegate characterised the applicant's complaint as being about ASIO's handling of the applicant's personal information". However, the applicant's complaint appears - at least at first blush - to raise a complaint of interference with privacy by multiple regulated entities, including several entities that are not intelligence agencies.

The Commissioner has not addressed in her submissions whether (or how) it was reasonably open for the delegate to characterise the 22 August complaint as being exclusively about interferences with the applicant's privacy by ASIO, nor why that is (or might be) a matter of limited or no significance.

That issue is one that his Honour considers warrants, or might warrant, some attention in the court's consideration of the application. The respondent is invited to let chambers know if she seeks a further opportunity to be heard in relation to it and, if so, whether that opportunity should assume the form of additional written submissions or an oral hearing (or both). Depending on the response to that invitation, it might be appropriate for orders to be made permitting a further exchange of submissions, with the respondent filing her submissions first (followed by the applicant).

1. As has been noted, the parties each advanced further submissions in response to that invitation. Mr Kant's went further than permitted and I have disregarded them to that extent. By hers, the Commissioner sought to impress upon the court why it was that the matter identified did not infect the Delegate's Decision in the way that Mr Kant alleged.
2. First, she said, the documents attached to the Complaint/Enquiry "suggest that the relevant conduct was confined to ASIO". In that respect, the Commissioner referred to the attachments summarised at [14(2)] and [14(4)] above. The Commissioner contended that the other attachments did not clearly indicate which entities were the subject of the complaint.
3. That submission cannot be accepted. The Complaint/Enquiry was a written complaint about interferences with Mr Kant's privacy by multiple entities. Some of those entities were expressly named and it is not apparent that (and has not been explained why) alleged interferences with an individual's privacy by at least some of them would be beyond the Commissioner's powers of investigation.
4. Next, the Commissioner advanced that "[t]he applicant's subsequent conduct supports the conclusion that the complaint was confined to ASIO, or at least that he acquiesced [to] it being treated that way". In that regard, the Commissioner relied on Mr Kant's email sent on 12 September 2023 to the delegate:

...stating that complaint CP23/02755 was, as he understood it, "limited to the privacy aspect of EN23/09186 as it relates to ASIO." The email stated that "the OAIC does have authority to investigate the handling of [his] personal information by ASIO" and requested that the OAIC review its decision accordingly. The applicant did not assert that the scope of the complaint had been misunderstood but instead argued that the OAIC had jurisdiction to investigate ASIO's handling of personal information under the ICCPR.

1. Respectfully, the first of those arguments cannot be accepted. By his email, Mr Kant conveyed his understanding that the Delegate's Decision was confined to the ASIO portion of the Complaint/Enquiry, not that the Complaint/Enquiry itself was solely about the conduct of ASIO.
2. The second of the Commissioner's contentions must fail for similar reasons. The most to which Mr Kant might be said to have acquiesced by that email is the Commissioner dealing with the ASIO portion of the Complaint/Enquiry discretely. He cannot fairly be understood to have accepted that the Commissioner should deal only with that part of it.
3. The question then arises as to whether the Judicial Review Application is addressed to the Commissioner's decision with respect to that discrete issue, or to its handling of the Complaint/Enquiry more broadly. The Commissioner submits that the Judicial Review Application is addressed only to the former. She submitted (references omitted):
   1. ...Even if the complaint, properly characterised, was directed at "multiple regulated entities", any mischaracterisation by the delegate is immaterial. Under s 36(5) of the Privacy Act 1988, a complaint must "specify the respondent to the complaint." Where multiple respondents are identified, each gives rise to a separate complaint.
   2. In this case, the complaint that is the subject of the present judicial review proceeding is the one finalised by the respondent's letter dated 12 September 2023, which was characterised as being against ASIO. If the applicant intended to pursue complaints against other entities arising from his correspondence of 22 August 2023, those would be separate complaints, which are not the subject of the 12 September 2023 decision, and are not within the scope of this proceeding.

1. In support of that submission the Commissioner relied upon Rana v Australian Information Commissioner [2023] FCAFC 17 (Bromwich, Charlesworth and Abraham JJ) ("Rana"). In that matter, the applicant had made a privacy complaint against multiple search engines. The full court approved of the Commissioner's treatment of the original complaint "as being three separate complaints". It said (at [15]):

Before turning to those grounds of review, the primary judge, at J[61]-[68], made preliminary observations concerning the decision that the delegate was called upon to make, including that the complaint in question was made against Yahoo, not against any other entity, as is apparent from the terms of s 36(5) of [the Act] which, as noted above, obliges a complainant to specify the respondent to the complaint. Her Honour's reasons reveal that the Commissioner's Office had, entirely sensibly and properly, given separate complaint numbers to the complaint made against each separate entity, and that Mr Rana had made complaints against 26 separate entities, with separate explanations having been given as to why each had been declined or closed.

1. Unlike in Rana, there is no evidence here - certainly none to which either party has drawn the court's attention - that any complaint references were issued in respect of the Complaint/Enquiry other than "CP23/02755". Nor has any suggestion been advanced that the Commissioner ever dealt with the Complaint/Enquiry otherwise than by way of the Delegate's Decision and the correspondence that defended it.
2. The relief that Mr Kant seeks is now and has at all times been expressed in terms of the request for an investigation as set out in the Complaint/Enquiry. True though it is that Mr Kant confirmed in correspondence with the OAIC that the Judicial Review Application was directed to the Delegate's Decision, there is realistically nothing else that he could point to, other than silence, to say that the Commissioner had decided not to investigate the aspects of the Complaint/Enquiry that extended beyond his complaint about ASIO. The first time that the Commissioner raised that the Complaint/Enquiry had been or should be dissected into multiple discrete complaints was in her further submissions filed in response to the court raising the correspondence issue with the parties. That was so even though Mr Kant's grounds and submissions, as summarised at [27]-[30] above, were relatively clear in agitating the lack of correspondence between the Complaint/Enquiry and the reasons given in the Delegate's Decision. The inference that I am inclined to (and do) draw on the evidence is that the Delegate's Decision purported to deal with the entirety of the Complaint/Enquiry.
3. The delegate's characterisation of the Complaint/Enquiry as one wholly about the handling of Mr Kant's personal information by ASIO cannot be sustained. It was relevantly unreasonable or illogical in a material sense and, thus, is reflective of jurisdictional error that warrants the granting of prerogative relief.

1. By his first ground of challenge, Mr Kant maintains that the Commissioner is required (or, at the least, empowered) to investigate interferences with his privacy by ASIO. Insofar as the Delegate's Decision found to the contrary, he invites the court to find that it was affected by jurisdictional error.
2. In his submissions Mr Kant comes close to conceding - and in any event (for reasons already explained) it is the case - that the Commissioner's investigative duty under s 40(1) of the Act is limited by those parts of s 7 which exclude, from the definition of "acts and practices" about which privacy complaints may be made, acts done and practices engaged in by ASIO. That reality notwithstanding, Mr Kant's argument is that s 12B(2) provides separate authorisation for the Commissioner to investigate certain interferences with his privacy by ASIO; and specifically, those that breach rights conferred upon him by the ICCPR.
3. That contention is, with respect, misguided. In Re Kant [2025] HCASJ 40 [8]-[9] - which concerned another application brought by Mr Kant - Gordon J expounded well-understood principles about Australia's adoption and implementation of international laws (references omitted):
   1. A treaty - an international agreement concluded between two or more states and, relevantly, an international organisation - is governed by international law and gives rise to international legal rights and obligations. The signing and ratification of a treaty by the Executive Government of the Commonwealth does not make the terms of the treaty the law of Australia. To give a treaty legal force in Australia, the Commonwealth Parliament must pass an Act that implements the terms of the treaty, in whole or in part, so that the terms, as enacted, are the law of Australia....
   2. The Commonwealth Parliament has not implemented all of the international human rights treaties to which Australia is a party as part of its domestic law. So, for example, under the Australian Human Rights Commission Act 1986 (Cth), "human rights" are defined by reference to various international human rights treaties and declarations. However, the Australian Human Rights Commission Act does not give those treaties or declarations any substantive effect as the law of Australia. For those reasons, claims based directly on breaches of provisions of human rights treaties are misplaced...

1. In Kant v Principal Registrar of the Federal Court of Australia [2025] FCA 274 - which dealt with an unrelated application by Mr Kant - Murphy J disposed of Mr Kant's contention that s 12B(2) served somehow to expand Australia's implementation of the ICCPR beyond the (other) specific provisions of the Act. In this regard, his Honour explained (at [52]) that:

The applicant's argument reflects a fundamental misunderstanding of the effect of s 12B of [the Act], which is concerned with ensuring that there is a Constitutional basis for the operation of the Act. It does not operate to alter the meaning of the text of the Act as the applicant proposed. The Explanatory Memorandum to the Privacy Amendment (Private Sector) Bill 2000 provides that "Clause 12B is intended to ensure that the Act is given the widest possible operation consistent with Commonwealth constitutional legislative power."

1. In AIT18 v Australian Information Commissioner [2018] FCAFC 192; (2018) 267 FCR 93 (Logan, Griffiths and Farrell JJ), the full court explained that art 17 of the ICCPR does not, in any event, provide for an unlimited right to privacy. Its parameters are set by the broader provisions of the Act:

...the Privacy Act itself reflects the Parliament's concern to recognise and protect individual privacy within the framework of a complex statutory regime. It does so by a series of statutory provisions which protect the privacy of individuals from unlawful or arbitrary interference but also by specifying circumstances (or "exceptions") which reflect the Parliament's concern to strike an appropriate balance between competing community interests. We accept the Information Commissioner's submission that, in those circumstances, the exceptions should be interpreted carefully so as to preserve the balance which the legislation strikes between the competing community interests, noting also the relevance of the fact that Art 17(1) of the ICCPR is not expressed in unqualified terms. It does not confer an absolute "right to privacy", but rather creates a right not to be subjected to arbitrary or unlawful interference with one's privacy. The exceptions in the Privacy Act reflect the Parliament's identification of circumstances in which interference with a person's privacy is not arbitrary or unlawful.

1. Similar sentiments might be expressed about the operation of art 2.3 of the ICCPR, upon which Mr Kant seeks to rely.
2. When s 12B(2) of the Act is understood in that context, it is apparent that it does not operate to circumvent the limits of the Commissioner's duty to investigate complaints under s 40(1), which does not extend to complaints about acts done or practices engaged in by ASIO. Mr Kant's first ground must fail.

1. The relief for which Mr Kant moves (above at [22]) is unorthodox and, at least to an extent, does not obviously coalesce with the powers conferred upon the court by s 39B(1) of the Judiciary Act 1903 (Cth). As Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40-1:

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislator has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.

1. Having found that the Delegate's Decision was the product of jurisdictional error, it is appropriate that the court should grant prerogative relief in the form of writs of certiorari and mandamus. That should occur.
2. Mr Kant has sought "damages in lieu of costs". In that respect, he relies upon the Judiciary Act 1903 (Cth), s 80, which reads:

So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.

1. That reliance is misplaced. Section 43 of the FCA Act confers upon the court a broad discretion to award costs in matters such as this one. The principles governing the exercise of that discretion, as they apply in the case of a successful litigant in person, are conveniently summarised in AMO25 v Administrative Review Tribunal (No 2) [2025] FCA 376, [9]-[12] (Wheatley J) (emphasis original):
   1. Section 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides the Court with a "broad and ample" discretionary power to award costs: DSE (Holdings) Pty Limited v InterTAN Inc (2004) 51 ACSR 555; [2004] FCA 1251 at [14]; Tenser v Quigley [2016] FCAFC 178 at [26]. The power "must be exercised judicially, not arbitrary or capriciously or on grounds unconnected to the litigation" but having regard to the relevant principles and justice of the particular circumstances of the case involved: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 105 at [4]. The Court must take "into account any failure by a party to comply with the overarching purpose of the civil procedure provisions", being to "facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible": s 37N(4) and s 37M(1) of the FCA Act; LFDB v SM (No 2) [2017] FCAFC 207 at [7]; also see Australian Competition and Consumer Commission (ACCC) v Colgate-Palmolive Pty Ltd (No 5) (2021) 151 ACSR 26; [2021] FCA 246 at [6]- [9].
   2. In the absence of special circumstances, costs follow the event, being that a successful litigant will usually receive their costs, in proportion to their degree of success, which can result in a successful party being deprived of costs on issues failed upon or ordered to pay some of the costs of an unsuccessful party, on that issues approach: Hughes v Western Australia Cricket Association (Inc) [1986] ATPR 40-748; [1986] FCA 465 at 48,136; Hockey v Fairfax Media Publications Pty Ltd (No. 2) (2015) 237 FCR 127; [2015] FCA 750 at [37]; Tenser at [27]. Costs are compensatory in nature, not punitive: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 543, 563 and 567; Seven Network Ltd v News Ltd (2009) 182 FCR 160; [2009] FCAFC 166 at [1099]; Hockey at [37]; Tenser at [27]. Costs are usually awarded by way of partial indemnity for professional costs actually incurred, they are not intended to be a full and comprehensive amount of compensation for any loss suffered by the litigation: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 at 410-411; Probiotec Ltd v University of Melbourne (2008) 166 FCR 30; [2008] FCAFC 5 at [51].
   3. The discretion to depart from the ordinary position, being costs on a party and party basis, requires some special or unusual feature or the justice of the case requires such a departure: Seven Network at [1102]; Colgate at [8]. The categories where the Court will depart from the ordinary position are not closed: Seven Network at [1102]; Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 at [32]. Various categories were identified in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225; [1993] FCA 536 at 233-234, the principles of which were distilled in Barrett Property Group Ltd v Metricon Homes Pty Ltd (No 2) (2007) 74 IPR 52; [2007] FCA 1823 at [4], as follows:

• the making of allegations of fraud knowing them to be false, and the making of irrelevant allegations of fraud;
• evidence of particular misconduct that causes loss of time to the Court and to other parties;
• the commencement or continuation of proceedings for an ulterior motive;
• wilful disregard of known facts or clearly established law;
• the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions; and
• an imprudent refusal of an offer to compromise.
  1. As a general rule, a self-represented litigant may not obtain any recompense for the value of his or her time spent in litigation: Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 at [1]; Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 at 410-411. It has been said that a Court has no power to award costs in favour of an unrepresented litigant: Australian Super Pty Ltd v Woodward (2009) 262 ALR 402; [2009] FCAFC 168 at [60]- [61]. However, such a litigant is entitled to their disbursements: Frost v Sheahan as Trustee of the Bankrupt Estate of Allen Gordon Frost [2012] FCAFC 46 at [76]; P v Child Support Registrar [2012] FCA 1398 at [36]; George v Fletcher (Trustee) (No 2) [2010] FCAFC 71 at [17]- [19]; Visscher v Teekay Shipping (Australia) Pty Ltd (No 3) [2012] FCA 212 at [9]; Schokker v Commissioner of Taxation [1999] FCA 1311.

1. Costs are not, contrary to Mr Kant's submissions, recoverable as damages: Gray v Sirtex Medical Ltd [2011] FCAFC 40; (2011) 193 FCR 1, 9 [15] (Bennett, Gilmour and Gordon JJ).
2. In the circumstances, it is appropriate that the Commissioner pay Mr Kant's costs to be assessed in the usual way if not agreed. Those costs will reflect what is generally regarded as outlays or disbursements, rather than compensation for Mr Kant's own time in conducting the litigation.

I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.