Grounds 1 and 7
23 By Ground 1, Ms McEwan challenges the primary judge's finding that, because the disclosures were authorised by s 355-50, the AIC could be properly satisfied, in accordance with s 41(a) of the Privacy Act, that there had not been an interference with Ms McEwan's privacy and so the privacy complaint should be dismissed without investigation.
24 As was developed in her oral submissions, Ground 1 relies not merely on the construction of s 355-50 of the TAA, which was the primary focus of Grounds 2, 3 and 4, but also on the construction of s 41 of the Privacy Act. Ms McEwan submitted, quite properly, that the construction of s 41 is informed by the Objects of the Act, as stipulated in s 2A of the Privacy Act:
The objects of this Act are:
(a) to promote the protection of the privacy of individuals; and
(b) to recognise the protection of the privacy of individuals is balanced with the interests of entities in carrying out their functions or activities; and
(c) to provide the basis for nationally consistent regulation of privacy and the handling of personal information; and
(d) to promote responsible and transparent handling of personal information by entities; and
(e) to facilitate an efficient credit reporting system while ensuring that the privacy of individuals is respected; and
(f) to facilitate the free flow of information across national borders while ensuring that the privacy of individuals is respected; and
(g) to provide a means for individuals to complain about an alleged interference with their privacy; and
(h) to implement Australia's international obligation in relation to privacy.
25 It will be apparent that there is some tension between and amongst the stated objects of the Privacy Act - most relevantly in the present context is the tension between promoting the privacy of an individual and balancing that with the interests of entities, such as the ATO, in carrying out their functions or activities. Neither is prioritised over the other.
26 The AIC is empowered to decide not to investigate if they are satisfied, relevantly in this case, that the act is not an interference with an individual's privacy (s 41(1)(a)) or an investigation is not warranted having regard to all the circumstances (s 41(1)(da)). It is clear from the Commissioner's decision that she was conscious of the role of the ATO in carrying out its duties, being the investigation of an "anomaly" in relation to a research and development tax offset refund, as well as the possibility that Ms McEwan's privacy had been interfered with by the ATO.
27 To the extent that Ground 1 complains that the Commissioner's state of satisfaction was erroneously reached because of s 355-50 of the TAA, the complaint is without foundation. The Commissioner formed the view that Ms McEwan's personal information was collected "for the primary purpose of the [ATO's] investigation." As the Commissioner observed, the AIC does not administer the provisions of the TAA. Having concluded, correctly, that it was permissible for the ATO to disclose the "protected information" under s 355-50, the Commissioner reached a state of satisfaction sufficient for her to decide not to investigate.
28 However, Ms McEwan further complains that the Commissioner could not have reached the appropriate state of satisfaction required by s 41(1)(a) of the Privacy Act in the absence of having all the material that was before the AIC when she made the decision. By reason of the matters raised in Ground 7, Ms McEwan submitted that the Commissioner could not have had all the material before her when she made the decision not to investigate because she had only the Draft PV, which Ms McEwan alleges had been tampered with or was otherwise fraudulent, and the primary judge should have so found.
29 These are serious allegations made against the AIC. For that reason, the AIC sought and was granted leave to withdraw its submitting notice for the purpose of making submissions relating to Ground 7.
30 The alleged fraud is said to be manifested by discrepancies in two or more versions of the email header to the Draft PV, which was an attachment only to an internal email within the Commissioner's office. No evidence was adduced as to how these discrepancies came about. There was, however, no difference in the substantive text of the Draft PV in any version before the Court. As was explained to Ms McEwan in an email dated 28 June 2022 from the solicitor for the AIC, the Draft PV was never sent because the Commissioner took a different view from that expressed in the Draft PV and decided not to investigate. Ms McEwan does not accept that explanation and maintains that there was more material (she does not say how or where) that must have been before the Commissioner when she made her decision and which has not been disclosed.
31 Ms McEwan did not allege fraud before the primary judge. Although she raised the discrepancies, it is apparent from the transcript below that any concern Ms McEwan had with the authenticity of the document was ultimately not pressed at hearing. The primary judge dealt with the matter in this way, at PJ[26]-[27]:
For completeness, I should mention that, at an anterior stage of the administrative processes within the Office of the Information Commissioner, a view different to that which came ultimately to be expressed on 6 April 2022 was formed. That became the subject of an internal communication, by email, as between a subordinate and the ultimate decision-maker within the Office of the Information Commissioner. Yet further one particular print of that email for a reason not readily apparent, came upon its retrieval and printing into hard copy to bear a year imprint 2001.
It is not for me either to investigate or speculate about how such an imprint came to occur, only to recognise that the views of the subordinate came not to be adopted. That is not to say that those views, for reasons which doubtless seemed good to the subordinate, may not have been shared at a consideration stage with Ms McEwan. It would be quite wrong, however, to form any conspiratorial view about the ultimate decision made by the Information Commissioner. There is not a scintilla of evidence whatsoever which would suggest that that decision was made other than in good faith. Further, for the reasons which I have expressed, that decision is not one where the satisfaction formed was infected by the error for which Ms McEwan contends.
32 There is no basis for Ms McEwan's contention that the primary judge failed to place any weight on "tampered evidence" relevant to the proceeding. This is because there was no evidence that any evidence had been tampered with.
33 The allegation of fraud raised in this Court, for the first time on appeal, is not one that can be entertained. Ms McEwan asserted that the Commissioner had every opportunity to adduce evidence about the discrepancies in the headers to the documents but chose to stay silent. That submission cannot be accepted. An explanation was proffered in the email of 28 June 2022 referred to above. If Ms McEwan wished to challenge that explanation, her opportunity to do so was at the hearing before the primary judge.
34 Ms McEwan sought to invoke the principles in Clone Pty Ltd and Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) [2018] HCA 12; 261 CLR 165 in support of Ground 7. Those principles do not assist Ms McEwan. To the contrary, they establish, inter alia, that the appropriate procedure for seeking an order setting aside an earlier perfected judgment is by application in a new proceeding, and not by application in the proceeding in which the judgment was obtained (at [68]), or by extension on appeal where the matter has not been raised at first instance. Further, it is necessary to demonstrate actual fraud. Proof of misconduct, accident, surprise, mistake or lack of frankness will not suffice (at [55]-[56]).
35 In any event, the allegations go nowhere in circumstances where Ms McEwan accepts that any preliminary view which might have been expressed by a subordinate was overruled by the delegate who was the decision-maker. The Draft PV is, therefore, not the subject of this appeal and is of no relevance.
36 There is nothing before this Court that suggests that the AIC acted in bad faith, tampered with evidence or committed fraud.
37 Ground 7 must be dismissed.
38 It is unnecessary to deal with the remaining grounds of appeal.