Resolution
51 In AIT18 v Australian Information Commissioner (2018) 267 FCR 93, at [74], and following, the Full Court considered in detail the general approach to the construction of the Privacy Act. Suffice it to say, while the Privacy Act may be regarded as beneficial legislation, thus favouring a like construction in cases of any textual ambiguity, the general approach to statutory construction ordained by the High Court in cases such as Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, at [39], of beginning with the text of the statute and reading that in context (which may include reference to extrinsic materials), is applicable.
52 Regard to the text of both APP 12 and APP 13 discloses a dichotomy between responding to a request and consequentially actioning it. In APP 12, this is evident by comparing the text of APP 12.4(a) with APP 12.4(b). The position is less stark with APP 13. The primary judge also noted an absence of textual clarity. His Honour's preferred construction, at [83], was that corrective action had to occur in 30 days. With respect, we consider that a comparison between the text of APP 13.5 with APP 13.1 or, as the case may be, APP 13.4 discloses the dichotomy mentioned. In each instance, the specified time limit is applicable only to a response. Further, that same comparison discloses that a response is different to consequential action. It would certainly be permissible to give such an indication in a response, but the 30 day period governs "response" not action under APP 13.1 or APP 13.4.
53 The absence of specification of a time limit in relation to consequential action does not mean that an "APP entity" (as defined by s 6 of the Privacy Act, the Department, as an "agency", being such an entity) may, after response, consequentially action a request at its leisure. Rather, by necessary implication, an APP entity would have to take action within a reasonable time: Koon Wing Lau v Calwell (1949) 80 CLR 533, at 573 - 574; Re O'Reilly; Ex parte Australena Investments Pty Ltd (1983) 58 ALJR 36, at 36; 50 ALR 577, at 578; Shahi v Minister for Immigration and Citizenship (2011) 246 CLR 163, at 174, [28]. Whether or not an unreasonable time had passed could be determined on an application for a mandamus by reference to the circumstances of a given case: Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179, at [37]. This inherently fact specific quality means that, in some cases, where the corrective action needed was obvious and not extensive, a reasonable time for the taking of corrective action could conceivably be much less than even 30 days. In such cases, a response would also advise that particular corrective action had already been taken. A conclusion that the obligation to take action within a reasonable time had not been discharged by an APP entity is not one which would be lightly reached: Minister for Home Affairs v DUA16 (2020) 95 ALJR 54, at [26].
54 A construction which recognises an inherently case specific requirement for action within a reasonable time, rather than any rigid, "one size fits all" time limit for taking action, as contended for by Mr Knowles, also better accords with achieving the statutory purpose of applying privacy principles of general application in a myriad of different circumstances.
55 For these reasons, we reject Mr Knowles' submission that his APP 12 request had to be actioned within 30 days. What was required within that time was a response to his request. That occurred.
56 Further, the learned primary judge correctly recognised that the granting of declaratory relief is discretionary.
57 The dispute between Mr Knowles and the Secretary arose in federal jurisdiction. It arose under the Privacy Act and concerned its interpretation. One relevant source of federal jurisdiction exercisable by this Court was therefore s 39B(1A)(c) of the Judiciary Act. It is also possible to conceive of other bases upon which the jurisdiction of this Court was validly invoked by Mr Knowles: the ADJR Act and s 80W of the Privacy Act. Jurisdiction having been validly invoked, the Court had power to grant declaratory relief as an adjunct or alternative to other relief, the source of that power being found in either or each of s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and s 16 of the ADJR Act, if not also the Court's status as a superior court of record and one of law and equity. The jurisdiction to grant declaratory relief so as to declare the rights of parties in relation to a dispute is broad: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, at 437 - 438.
58 To overturn on appeal an exercise of a judicial discretion Mr Knowles must demonstrate that the exercise of that discretion by the primary judge entailed an error of principle of the kind described in House v The King (1936) 55 CLR 499. Such an error would not be found in a disposition to have exercised that discretion in a different way (even assuming we were so disposed).
59 One basis upon which, as a matter of discretion, declaratory relief might be refused is lack of utility: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, at 581 - 582. Another is the existence of an adequate alternative remedy: Tooth & Co Ltd v Parramatta City Council (1955) 97 CLR 492, at 498; see also, as to discretionary refusal of declaratory relief under the ADJR Act, s 10 of that Act.
60 As to the 25 November APP 12 Request and apart from Mr Knowles' misconception as to the construction of that principle, as at the time when the primary judge gave judgment, Mr Knowles had long since been given access to the personal information held by the Secretary. In relation to that request, there was, as the primary judge recognised, no ongoing utility in the granting of any declaratory relief. Contrary to Mr Knowles' submission, there was nothing "automatic" in his Honour's consequential conclusion that he would in any event decline to grant declaratory relief, only an unremarkable exercise of discretion in the prevailing circumstances.
61 Also contrary to Mr Knowles' submission, Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance (2004) 148 FCR 145 (Seven Network v MEAA) does not stand for any contrary proposition. As the Secretary correctly submitted, what occurred in that case was a rejection by Gyles J of a submission that it was the then Privacy Commissioner who had the responsibility for the investigation of complaints about breaches of the privacy principles for which the Privacy Act provided and that such breaches were not directly actionable in the Court. As a reason for the rejection of that submission, his Honour pointed (at [39] - [40]) to the conferral on the Court by the then s 98 of that Act of a power to grant injunctive relief in respect of breaches. This conferral was no different in character to similar jurisdictions conferred on the Court under trade practices and corporations legislation. His Honour also observed that it was by no means uncommon in federal legislation for there to be provision for concurrent statutory remedies. All of this, with respect, may readily be accepted. Unlike in the present case, what was not put to the Court in Seven Network v MEAA was that there was to be found in one of those concurrent statutory remedies an adequate alternative in the circumstances of the particular case. No occasion thus arose for Gyles J to consider whether or not, as a matter of discretion, the power to grant relief should be exercised.
62 Also unremarkable was the conclusion of the primary judge that no bad faith had been proved in the Department's responding to and acting upon the 25 November APP 12 Request.
63 The reference by the primary judge to the following observation of the Full Court in SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397, at [19], was apt:
An allegation of bad faith is a very serious one. Bad faith in this context implies a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker: NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [107] - [108].
64 Although the proceeding was civil rather than criminal in character, thus requiring proof only on the balance of probabilities (s 140(1), Evidence Act 1995 (Cth) (Evidence Act)), an allegation of bad faith was a grave one and the onus of proving it fell upon Mr Knowles. It was indeed a paradigm case to which s 140(2) of the Evidence Act and the observations made by Sir Owen Dixon in Briginshaw v Briginshaw (1938) 60 CLR 336 were applicable. As Heerey and Kiefel JJ observed in Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 (SBAN), at [8], "There is no such thing as deemed or constructive bad faith." Deficiencies in public administration do not, without more, entitle a court to drawn an inference of bad faith on the part of a public servant. Rather, as Heerey and Kiefel JJ further observed in SBAN, at [8], "Such defects can be equally explicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker's duty."; see also to like effect, Munday v Commonwealth (No 2) (2014) 226 FCR 199, at [99], per Katzmann J.
65 Mr Knowles' perception of bad faith on the part of Mr Heldon in dealing with the 25 November APP 12 Request was, and remains, coloured by his misconception as to APP 12 entailing a 30 day time limit not just for response but also consequential action. Given that this request was in part satisfied before Christmas 2016 and fully by early February 2017, and especially recalling that the traditional Summer holiday period fell in between, merely to hold that there was nothing on the evidence which would reasonably support an inference of bad faith on the part of Mr Heldon may be to damn him with faint praise. If anything, the inference to draw, on the evidence, given that responses were necessary to be sought, obtained and co-ordinated within what is a large Department of State, is that the 25 November APP 12 Request was diligently actioned in good faith by Mr Heldon.
66 Mr Knowles' challenge to the rejection by the primary judge of his bad faith claim must for these reasons fail.
67 Given that the 2 March APP 13 request and the 3 March Demand Email were each premised on the correctness of the OAIC Determination and that this determination was subsequently, as noted above, set aside, the occasion for a correction and Mr Knowles' umbrage about the Department's action has disappeared. The primary judge clearly recognised this. His Honour's consequential conclusion as to there also being, in relation to the 2 March APP 13 request and the 3 March Demand email, an absence of utility in the granting of any declaratory relief is unremarkable and, seemingly, not challenged by Mr Knowles in his grounds of appeal.
68 Mr Knowles did, however, in his submissions, put that the primary judge had erred in taking into account events subsequent to the 2 March APP 13 request. But the primary judge took those events into account not for the purpose of determining the Department's compliance with APP 13 but rather for the purpose of determining whether there was any utility in the claim for relief made by Mr Knowles. This he was entitled to do.
69 The primary judge also considered that, in relation to the 2 March APP 13 request, whatever grievance Mr Knowles had with respect to the adequacy or otherwise of the consequential action taken by the Department in annotating its record with a copy of the OAIC Determination could have been the subject of complaint to the OAIC under Pt V of the Privacy Act and, in the event of continuing dissatisfaction, review by the Administrative Appeals Tribunal pursuant to s 96 of that Act. This, in his Honour's view, offered an adequate alternative remedy such that, in any event, as a matter of discretion, declaratory relief in respect of this request should be refused. For reasons already given, that was a basis upon which declaratory relief might be refused. Mr Knowles has not demonstrated any error of principle by the primary judge in the exercise of this discretion.
70 Further and in any event, APP 13.1 is prescriptive only to the extent of requiring that an APP entity "take such steps (if any) as are reasonable in the circumstances" to correct inaccurate, out-of-date, incomplete, irrelevant or misleading personal information. "Correct" could conceivably embrace deletion but that may not be the only reasonable way of achieving the end ordained by APP 13.1. For example, a record containing an inaccurate date of birth might reasonably be corrected by deleting the inaccurate date and inserting the accurate date. But there would be nothing unreasonable in an APP entity striking through the inaccurate date and inserting the accurate date beside it or by annotating the record containing the inaccurate date with a statement, "The [individual's] correct date of birth is as shown on the attachment." With respect, sensibly, the principle leaves it to the good sense and judgment of the APP entity concerned as to how best to meet the obligation it creates, if correction is necessary. The only touchstone is reasonableness. The measure adopted by the Department in relation to the OAIC Determination, annexure, has not been shown by Mr Knowles to be unreasonable.
71 As to the 3 March Demand email, there is, with respect, much force in the conclusion of the primary judge, at [111], that this did not contain a request for the correction of information. Buried in the intemperate prolixity of this email was a demand for the destruction of a record, the record being Mr Heldon's earlier, measured response to him.
72 It may readily be accepted that what amounts to a request for correction of personal information held by an APP entity ought not to be approached in a narrow, pedantic way. To do that would be subversive of the beneficial purpose of the Privacy Act. Further, as we have already observed, correction might in some cases entail a deletion of information. But the limit of remit for correction is as found in APP 13. It is not part of that remit that, even if a record contains some inaccurate information, the necessary corrective action can only be deletion of the entire record. Once again, what is necessary is, in the first instance, left by APP 13 to the good sense and judgment of the APP entity as to what, if anything, is reasonable to achieve the end ordained by that principle.
73 We consider that the characterisation of the primary judge of the 3 March Demand email as a "carry over" of the 2 March APP 13 request, which did contain a request for correction, is apt. The Department did take corrective action in response to that request with respect to personal information. It annotated its record with the OAIC Determination. Beyond this, Mr Heldon's statement, "I assume your expletives and threats are only a reflection of this frustration and do not imply a serious or imminent threat to my health or safety" did nothing more than communicate (in a non-defamatory way, contrary to Mr Knowles' assertion) an assumption on his part, accurate in its characterisation of the language employed by Mr Knowles in correspondence. The 3 March Demand email should not be characterised as a request for the correction of any further personal information, because there was none.
74 It will be obvious from the foregoing that we agree with the point raised in the Secretary's notice of contention as to the absence of any inaccuracy in Mr Heldon's response. However, given the conclusion reached as to the correct characterisation of the 3 March Demand email, it is not necessary to consider whether the Department's absence of correction required the communication of a refusal to Mr Knowles.
75 Further and in any event, for reasons already given, the learned primary judge was entitled, as a matter of discretion, to decline to grant any declaratory relief on the basis that there existed adequate alternative remedies under the Privacy Act. Yet further, in circumstances where there was neither inaccuracy nor defamation entailed in Mr Heldon's response, an exercise of judicial power to vindicate a misplaced sense of grievance as to a violation of a privacy principle would have been, and remains, utterly unwarranted.
76 There remains Mr Knowles' challenge to the order for costs made by his Honour. The power to award costs is found in s 43 of the FCA Act. It is discretionary. In a case of the present kind, that discretion is not expressly constrained. But the power must be exercised judicially. And the usual way in which that discretion is so exercised in relation to costs is by an order that costs follow the event: Oshlack v Richmond River Council (1998) 193 CLR 72, at 96, per McHugh J. The primary judge so exercised the costs discretion.
77 Mr Knowles submitted that no order for costs ought to have been made against him. Once again, to overturn on appeal, the exercise of a judicial discretion requires that Mr Knowles demonstrate some error of principle.
78 Mr Knowles put that a public interest was served by the case. He made reference to a number of cases in which, recognising this, the Court had, either in whole or in part, departed from the usual costs follow the event outcome in the exercise of a costs discretion: Singh v Minister for Immigration and Multicultural Affairs [1998] FCA 956, Shelton v Repatriation Commission (1999) 85 FCR 587 and Shafran v Repatriation Commission (No 2) [2020] FCA 1072. To these might be added, without in any way being exhaustive, Repatriation Commission v Braund (1991) 23 ALD 591 (Braund).
79 In some circumstances, and the complexity of legislative provision currently favoured by Parliament in relation to various veterans' entitlements can offer these, a particular case can be seen to highlight an issue of pervasive importance in public administration concerning an ambiguously worded statutory provision, not just the mere application of legislation in a given case. In these circumstances and where the issue raised is truly moot, a departure from the usual costs outcome can be warranted. But something more than just a need to construe a federal statute must be entailed to warrant such a departure. In Braund, for example, the point at issue concerned a truly difficult point of the construction and application of veterans' entitlement provisions concerning the special (or totally and permanently incapacitated) rate pension to a veteran beyond the usual retirement age in the general population. At the time, that issue had a pervasive importance to a generation of Second World War veterans then in just that situation. In these circumstances, Pincus J (then a member of this Court) declined to make an order for costs, even though the Repatriation Commission succeeded in the proceeding.
80 This case has none of those features. It concerns a purely private interest. There was no error of principle entailed in awarding costs in the usual way to the Secretary. These same considerations explain why it is that the usual order is appropriate in relation to the disposal of the appeal.
81 For these reasons, the appeal is dismissed, with costs.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier, Logan and Charlesworth.