McGinn v Australian Information Commissioner

(a) under s 41(1)(a) of the Privacy Act, being satisfied that the act or practice about which the applicant had complained was not an interference with her privacy;

(b) under s 41(1)(da), being satisfied that an investigation of the act or practice was not warranted, having regard to all the circumstances.

1. Interferences with privacy are dealt with in s 13 of the Privacy Act. An interference with privacy includes, relevantly, where an "APP entity" breaches an Australian Privacy Principle (APP) in relation to personal information about an individual. The APPs are set out in Schedule 1 to the Privacy Act. There is no dispute that the respondent to the applicant's complaint, namely North Shore BMW, is an APP entity.
2. The APPs include, relevantly, APP 12, which concerns access to personal information. If an APP entity holds "personal information" (defined in s 6(1)) about an individual, the entity must, on request by the individual, give them access to that information: APP 12.1. The procedure for dealing with such requests is dealt with in APP 12.4-12.10. An individual may complain to the Commissioner about an act or practice that may be an interference with the privacy of the individual; s 36(1).
3. When a complaint is made under s 36 and where an act may involve an interference with privacy, the Commissioner is required by s 40(1) to investigate the complaint, unless the Commissioner decides not to investigate, or not to investigate further, as permitted by s 41(1). Sub-section 41(1) provides that the Commissioner may decide not to investigate, or further investigate, where, relevantly for the present case, the Commissioner is satisfied that the act or practice is not an interference with the privacy of an individual (s 41(1)(a)), or that an investigation, or further investigation, of the act or practice is not warranted having regard to all the circumstances (s 41(1)(da)).
4. The Commissioner may make preliminary inquiries for the purpose of determining whether, in his or her discretion, to decide not to investigate: s 42.
5. On 18 June 2024, a delegate of the Commissioner referred (amongst other things) to North Shore BMW's response of May 2024 and provided a preliminary view to the applicant, informing her of his intention to exercise the power in s 41(1) of the Privacy Act not to investigate the complaint on the basis of the discretion conferred by subss 41(1)(a) and (da). As to the discretion in s 41(1)(a), the delegate stated:

(a) North Shore BMW's advice was that it did not hold any record with the applicant's personal information for 15 May 2017. While a key read was done, which was recorded directly to the BMW Australia system (and not the North Shore BMW system), North Shore BMW held no record for that date.

(b) The obligation in APP 12 to provide access to personal information "does not apply where North Shore BMW does not hold the record you are seeking".

(c) There are no record keeping requirements in the Privacy Act, such that there was no requirement for North Shore BMW to have made a record on 15 May 2017, nor any requirement for it to create a record to fulfil an access request.

1. As to the discretion in s 41(1)(da), the delegate found:

(a) There had been no clear interference with the applicant's privacy.

(b) Any claim about the falsification of records was a matter for the police and is not within the scope of the Privacy Act. Similarly, the Office of the Australian Information Commissioner (OAIC) does not have powers under the Privacy Act to establish whether a record is incorrect.

(c) There does not appear to be any sensitive information, nor any evidence of harm or loss associated with North Shore BMW's acts or practices.

(d) An investigation was unlikely to result in a better or different outcome.

1. The delegate invited the applicant to respond to that preliminary view by 2 July 2024. On 20 June 2024, the applicant provided a responsive submission.
2. On 18 July 2024, a delegate of the Commissioner decided under s 41(1) of the Privacy Act not to investigate the applicant's complaint further, relying on the grounds in subss 41(1)(a) and (da), consistently with the preliminary view of 18 June 2024.
3. The delegate responded to the applicant's submissions of 20 June 2024 as follows:

(a) While BMW Australia may have advised that a service was performed on the applicant's car on 15 May 2017 by North Shore BMW, "this does not mean that a record exists for this date", and the OAIC does not have powers to investigate why a record was not created.

(b) North Shore BMW had advised that it did not hold a record of the applicant's personal information dated 15 May 2017, whether an invoice or otherwise. As APP 12 does not stipulate any record keeping requirements, "the lack of a record for the service allegedly conducted by North Shore BMW on this date is a service issue, rather than privacy".

(c) With respect to the applicant's submission that North Shore BMW was "lying", North Shore BMW had advised on both 13 and 27 May 2024 that the record of 19 May 2017 relates to the service of 8 December 2016. North Shore BMW, "did not specify" that a document relating to 15 May 2017 had been provided. Instead, it had "unequivocally stated that it does not hold a record of your personal information" for that date.

1. The delegate then restated the reasons given in the preliminary view summarised above.
2. By her originating application filed on 8 August 2024, the applicant advances five grounds of review under the AD(JR) Act. In a proceeding of this kind, the Court is concerned only with the legality of the decision not to proceed with an investigation by reference to the grounds of review advanced, and not with the merits of the applicant's underlying claims.
3. By Ground 1(a), the applicant alleges that the delegate denied her procedural fairness, relying on s 5(1)(a) of the AD(JR) Act. The applicant alleges that the delegate "formed the view not to investigate... before giving [her] an opportunity to respond" to North Shore BMW's "third excuse", being that there was no record dated 15 May 2027.
4. As the respondent submits, by her application, the applicant might be taken to allege a denial of procedural fairness at two points: first, in the delegate's letter of 18 June 2024, and second, in respect of the Decision of 18 July 2024.
5. As to the 18 June 2024 letter, the purpose of the letter was to afford the applicant the opportunity that she alleges she was denied. The delegate provided the applicant with a summary of North Shore BMW's response of 27 May 2024 and attached a copy of that response. The delegate explained in his preliminary view that there had not been an interference with the applicant's privacy, and that an investigation was not warranted having regard to all the circumstances, and stated that the applicant, "now [has] an opportunity to comment before [he makes] a decision".
6. It was entirely appropriate for the delegate to indicate that North Shore BMW's response of 27 May 2024 led them to the preliminary view that there had been no interference with the applicant's privacy, and that an investigation was not otherwise warranted. In so doing, the delegate afforded the applicant an opportunity to respond both to North Shore BMW's response and to the delegate's preliminary view, taking into account all the materials available. The 18 June 2024 letter was thus a means of affording the applicant procedural fairness.
7. The respondent submits, and I accept, that the opportunity to respond to material adverse to an applicant's case must have a natural limit, or else the deliberative process would never end. I reject the applicant's contention that the delegate should have provided North Shore BMW's response to the applicant before providing notice of a preliminary view.
8. As to the decision on 18 July 2024, the applicant responded to the 18 June 2024 letter on 20 June 2024, providing a substantive response to North Shore BMW's response of 27 May 2024. That response was taken into account by the delegate in his decision. The applicant was therefore afforded procedural fairness.
9. By Ground 1(b), the applicant alleges that the delegate's Decision was affected by actual bias, because he was "so committed, whatever the evidence is presented, even when provided with further records obtained from BMW Australia", such that the applicant was denied a fair hearing within the meaning of s 5(1)(a) of the AD(JR) Act.
10. An allegation of actual bias requires strong grounds for supposing that the decision-maker has so acted that he cannot be expected fairly to discharge his duties: R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 (Dixon CJ, Williams, Webb and Fullagar JJ). Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion: The Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72] (Gleeson CJ and Gummow J). Indeed, while there is no requirement on administrative decision-makers continuously to disclose a process of reasoning, the proper expression of tentative views may actually enhance the fairness of the administrative process by alerting a claimant to perceived deficiencies in the claim being made and affording an opportunity to the claimant to address those perceived deficiencies: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [27] (Flick J, with whom Allsop CJ agreed).
11. While the applicant may be disappointed or aggrieved by the delegate's Decision, there is no basis to conclude that the delegate prejudged the complaint, nor that he was not open to persuasion. That was the very purpose of the 18 June 2024 invitation, in seeking a response to a tentative view. That the delegate was not persuaded by the applicant's response does not prove actual bias. Ground 1(b) should be rejected.
12. By Ground 2, relying on s 5(1)(e) of the AD(JR) Act, the applicant alleges that the delegate:

(a) took into account an irrelevant consideration, being North Shore BMW's "false statement that the service records on 15 May 2017 do not exist";

(b) failed to take a relevant consideration into account, being the "records of service history from BMW Australia"; and

(c) made a decision which was so unreasonable that no reasonable person could have so exercised the power, "based on the fallacy that the car key is a fortune-teller that predicted the car will need 2-hour repair and 'uploaded' the information".

1. As to Ground 2(a), where the central allegation of a complaint under s 36 of the Privacy Act is a failure to produce a record in accordance with APP 12.1, information tending to prove that there is no such record in existence is directly relevant to whether or not there has been an interference with privacy for the purposes of s 41(1)(a), and to whether an investigation is warranted, having regard to all the circumstances under s 41(1)(da). It is open to a delegate to conclude that, a respondent having conducted searches for a record and having provided an explanation for why such a record might not exist, there is nothing to be gained by expending the OAIC's resources in investigating the matter further. North Shore BMW's submissions going to the non-existence of a record dated 15 May 2017 were therefore directly relevant to the delegate's consideration of whether to investigate.
2. As to Ground 2(b), the delegate gave the information provided by BMW Australia due consideration. The delegate noted that the applicant provided information suggesting a service was undertaken on 15 May 2017 and, while acknowledging the applicant's view based on BMW Australia's information that a service was performed on that date, reasoned that "this does not mean that a record exists for this date" for North Shore BMW to produce.
3. On that basis, there is no need to consider whether the threshold for implication of a mandatory relevant consideration is met, nor whether the failure to do so would justify this Court setting aside the delegate's Decision.
4. As to Ground 2(c), the applicant alleges that the delegate reasoned "based on the fallacy that the car key is a fortune-teller that predicted the car will need 2-hour repair and 'uploaded' the information". The delegate engaged in no such reasoning. Indeed, the delegate was prepared to accept BMW Australia's information that a service was conducted on 15 May 2017.
5. If one treats this ground instead as an allegation that it was unreasonable for the delegate to accept North Shore BMW's statements that there was no record dated 15 May 2017, it is necessary for the applicant to demonstrate that the delegate's Decision lacked an "evident and intelligible justification": Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ).
6. In reaching the state of satisfaction required by subss 41(1)(a) and (da), the delegate had cogent reasons for accepting North Shore BMW's submission that there was no record dated 15 May 2017, including that it had provided all other records requested by the applicant (which she appeared to accept); that information relating to 15 May 2017 was provided by a different entity, being BMW Australia; that North Shore BMW had "unequivocally stated" that no record existed, and that it had provided all records falling within the applicant's request; that there was no obligation on North Shore BMW to create a record to meet the applicant's request; and that it did not follow, even accepting that a service was undertaken on 15 May 2017, that a record was created on that date. It was not unreasonable for the delegate to prefer North Shore BMW's version of events, in light of all the circumstances, over the applicant's allegation that North Shore BMW was "lying on the record".
7. Accordingly, it was not illogical nor otherwise in error for the delegate to have concluded that there was no interference with privacy and nothing to be gained from an investigation, in North Shore BMW's failure to provide a record which did not exist.
8. By Ground 3, the applicant alleges that there was "no evidence" within the meaning of s 5(1)(h) of the AD(JR) Act, in reaching the following conclusions:

(a) that the delegate was satisfied that there was no interference with the applicant's privacy for the purposes of s 41(1)(a) because North Shore BMW failed to provide evidence to support a finding that there were no records dated 15 May 2017; and

(b) that the delegate was satisfied that an investigation was not warranted in all the circumstances for the purposes of s 41(1)(da), because reliance on there being no records dated 15 May 2017 was unsupported by any evidence, and because the delegate's statements that falsifying a record was a matter for the police and that the Commissioner does not have power to establish whether information is correct were also unsupported by evidence.

1. Ground 4 is in similar terms, despite the applicant's reliance on s 5(1)(f) insofar as the applicant alleges that the delegate erred in "making findings and drawing conclusions without evidential support". That ground does not articulate any further error and so may properly be addressed alongside Ground 3.
2. The "no evidence" ground reflected in s 5(1)(h) of the AD(JR) Act imposes a particularly high threshold. It is engaged only where there is "not a skerrick of evidence": Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [17] (Keane, Gordon, Edelman, Steward and Gleeson JJ). That is reflected in s 5(3) of the AD(JR) Act, which provides that s 5(1)(h) will not be made out unless the decision-maker was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material from which they could reasonably be satisfied that the matter was established (para (a)); or the decision-maker based the decision on the existence of a particular fact, and the fact did not exist (para (b)).
3. In assessing whether a "no evidence" ground is made out, it must be borne in mind that where an evaluative judgment is to be formed on the basis of conflicting indicators, it will be difficult, if not impossible, to establish a "no evidence" ground of review: L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34] (Basten JA, with whom McColl and Whealy JJ agreed), quoted with approval in Masi-Haini v Minister for Home Affairs [2023] FCAFC 126; (2023) 298 FCR 277 at [37] (Markovic, Meagher and Kennett JJ). Further, those decisions also provide authority for the proposition that an administrative decision-maker is usually entitled to take into account material which would not count as "evidence" in a judicial context.
4. The material before the delegate which supported the conclusion that there was no record held by North Shore BMW dated 15 May 2017 included submissions by North Shore BMW dated 13 May 2024 and 27 May 2024 to the effect that it had provided all documents within the scope of the applicant's request, confirmed that there was no document dated 15 May 2017, and explained why an invoice might not have been created on that date. The delegate's reasoning reflects an evaluative judgment between the applicant's submission that a document did exist, and North Shore BMW's submissions that it did not. The available materials preclude a conclusion of "no evidence".
5. There are two remaining allegations which arise on the application and the applicant's written submissions.
6. First, Ground 5 is put in the alternative to Grounds 1 to 4, raising the equivalent grounds of review in subss 6(1)(a), (e), (f) and (h) with respect to conduct related to the making of the delegate's Decision and is expressed as concerning "the same material facts... with further evidence that the officer who made the Decision is a senior officer and is in the capacity of the Commissioner, there is no room for competency speculation but to conclude a serious case of misconduct". Given the factual overlap, Ground 5 fails for the reasons given in respect of Grounds 1 to 4.
7. An additional aspect of Ground 5 is the apparent allegation that the delegate's conduct reveals "a serious case of misconduct". It may be that the applicant suggests that the delegate's conduct was vitiated by fraud within the meaning of ss 5(1)(g) or 6(1)(g) of the AD(JR) Act. In any event, that allegation should be rejected. There is nothing before the Court to suggest, let alone prove, that the Decision was actually induced or affected by fraud or any other species of misconduct.
8. Second, in her written submissions, the applicant alleges offences under ss 11.2(3) and 135 of the Criminal Code Act 1995 (Cth) and seeks related relief. That submission appears to have been abandoned in Ms McGinn's oral address. In case I have misunderstood Ms McGinn's oral address, it is sufficient to dispose of the argument to say that findings of criminal guilt are beyond the scope of the present judicial review application.
9. Accordingly, the application should be dismissed.
10. The respondent seeks an order for costs. The respondent has provided considerable assistance to the Court consistently with the Hardiman principle (see R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35-36 (Gibbs, Stephen, Mason, Aickin and Wilson JJ)), and the respondent's appearance was reasonably necessary in the interests of the administration of justice in dealing with the applicant's application. Accordingly, in my view, the Commissioner is entitled to an order for his costs.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.