7.4.3.2 The grounds have no reasonable prospects of success
107 These remaining grounds of judicial review have no reasonable prospects of success for the following reasons.
108 First, in deciding whether the application has any reasonable prospects of success, it is important to emphasise the limited jurisdiction of the Federal Court on judicial review to interfere with the decision of the Assistant Commissioner. The discretion in s 41(1) of the Privacy Act is vested only in the Commissioner or a delegate and not the Court. The jurisdiction of the Federal Court is confined to deciding whether the Assistant Commissioner's decision was made lawfully under the Privacy Act, that is, whether the Commissioner's decision is invalid by reason of a jurisdictional error or tainted by a reviewable error specified in s 5(1) of the ADJR Act (noting that the latter substantially overlap with the former: Administrative Review Council, Federal Judicial Review in Australia (Report No 50, 2012) at p. 127 [7.7]). The Assistant Commissioner would make a jurisdictional error (and equally an error under s 5(1), ADJR Act) if, for example: he misunderstood the criteria by which to determine whether to exercise the discretion in s 41(1) of the Privacy Act not to investigate a complaint; his decision was legally unreasonable; he failed to take into account a relevant (mandatory) consideration in a way that affected the exercise of the statutory power; or he failed to hear and determine the applicant's complaint in accordance with the requirements of procedural fairness (see e.g. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court)).
109 As such, is it not for this Court to exercise the discretion in s 41(1) of the Privacy Act for itself so as to determine whether or not the Commissioner or the Assistant Commissioner should investigate the applicant's complaint: see by analogy Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). The question of whether or not this Court or the applicant agrees with the Assistant Commissioner's decision is not a basis for finding that the decision is invalid or unlawful under the ADJR Act. It follows that the applicant's strong disagreement with the Assistant Commissioner's decision evident throughout the amended originating application and submissions is irrelevant. The only question for this Court is whether the discretion has been exercised by the Assistant Commissioner according to law.
110 Secondly and related to the first point, the discretion vested in the Commissioner by s 41(1) of the Privacy Act not to investigate a complaint is (relevantly) enlivened by the Commissioner subjectively being satisfied that the act or practice the subject of the complaint is not an interference with the privacy of an individual and not upon whether, objectively speaking, there is no such interference. In other words, it is a precondition to the making of a decision under s 41(1) not to investigate the complaint that the Commissioner reaches the required state of satisfaction: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ). In turn, where the power in question has been delegated (as here), the power may be exercised by the delegate upon the delegate reaching the required state of mind: see s 34A, Acts Interpretation Act 1901 (Cth). It follows that, to the extent that the applicant seeks to invite this Court to determine afresh whether or not there has been an interference with her privacy in the context of her challenge to the Assistant Commissioner's decision, the claim cannot succeed.
111 Thirdly, the applicant contends that she had provided "substantial evidence related to [her] claims for continuous, frequent, systemic, also deliberate breaches of the Privacy Act 1988 …" by the first and second respondents, some of which is included in her complaint to the Commissioner dated 11 March 2015. To similar effect, the applicant also submits that the Assistant Commissioner had determined not to investigate her complaint dated 11 March 2015 "despite the large amount of solid evidence that is included in this complaint" which she alleges was ignored by the Assistant Commissioner. As earlier mentioned, she also contends that the Assistant Commissioner's decision was unsubstantiated by evidence and that the Department and the Secretary provided only unsigned written submissions.
112 The Assistant Commissioner however, stated in his reasons that he considered all of the information which the applicant provided, including the additional information provided by her in response to further invitations by the OAIC made on 7 April 2016 and 31 August 2016: see the reasons of the Assistant Commissioner at pp. 1-2 (CB, tab 7 at p. 280). A reading of the Assistant Commissioner's careful consideration of the material in his reasons bears out his statements in this regard.
113 Furthermore, insofar as the applicant contends that the Department's response to the OAIC's preliminary inquiries dated 8 May 2015 ought not to have been given any weight because they were unsigned as opposed to her submissions and affidavits, the Assistant Commissioner specifically addressed the applicant's submissions and rejected it for the following reasons:
DHS's response was provided under a covering email sent by DHS, and I accept that this constitutes DHS's official response to the OAIC. Further, while the OAIC does not require signatures to be provided, DHS's response was provided under the signature of Mr Mowbray-d'Arbela, irrespective of whether the signature precedes the attachment.
In addition, DHS has obligations under s 65(3) of the Privacy Act to "not furnish information or make a statement to the Commissioner knowing that it is false or misleading in a material particular."
I do not have any reason to doubt the veracity of DHS's response. In these circumstances I accept that it was provided in good faith in accordance with DHS's obligations under the Privacy Act.
(Assistant Commissioner's reasons at p. 10 (CB tab 7 at p. 282)).
114 In this regard, it must be stressed that the Assistant Commissioner was not bound by the rules of evidence in determining whether he was satisfied that there was no interference with the applicant's privacy or otherwise in the exercise of the power: see e.g. by analogy Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555 at [61], [96]-[97] (Flick and Perry JJ); Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [64] (Flick and Rangiah JJ).
115 It is clear from the passages quoted above that the Assistant Commissioner gave rational and logical reasons for rejecting the applicant's submission that he should give the Department's material no weight. There being no other error apparent in the Assistant Commissioner's reasoning on this issue, an assessment of the weight to be given to the Department's response was a matter entirely for the Assistant Commissioner to decide. It follows that the applicant's disagreement with the decision in terms of the weight given to particular information is in truth a disagreement with the merits of the Assistant Commissioner's decision, which this Court lacks power to consider on a judicial review application: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J); Federal Commissioner of Taxation v Primary Health Care Ltd [2017] FCAFC 131; (2017) 252 FCR 496 at [21] (the Court). .
116 Fourthly, the applicant alleges that the Assistant Commissioner's decision is unreasonable. It is, of course, well established that the Parliament is taken to intend that a statutory discretion will be exercised reasonably: Jones v Office of the Australian Information Commissioner [2014] FCA 285 (Jones) at [19] (Greenwood J). However, as Greenwood J further explained in Jones by reference to binding authority of the High Court:
21. Importantly, however, a requirement of legality in decisionmaking that a decision be reached according to the rules of reason or, put another way for present purposes, reached reasonably, or not unreasonably reached, is not a vehicle for challenging a decision made in contended error of law and beyond power simply because "disagreement" is found with the "evaluative judgment" of the administrative decisionmaker. Challenging an administrative decisionmaker's reasoning as illogical or unreasonable may simply be an emphatic way of expressing disagreement with the decision or the merits, and such emphatic disagreement may have "no particular legal consequence" (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J).
22. Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how the discretion should be exercised for that of the decisionmaker. …
23. The legal standard of reasonableness must be the standard indicated by the proper construction of the statute which identifies the express statutory conditions and specific requirements upon which the exercise of the discretion rests in determining whether the statutory power has been abused, as falling short of the statutory standard, as a matter of legality in decisionmaking ([Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li)] per Hayne, Kiefel and Bell JJ at [76]).
…
25. In this case, the decisionmaker was required to understand the obligation to have proper regard to the express statutory conditions upon which the exercise of the discretion rested. The more specific errors in decisionmaking to which Courts often have regard in the exercise of jurisdiction under, for example, the ADJR Act and the jurisdiction conferred on the Court by the Judiciary Act 1903 (Cth) are ultimately all encompassed by the notion of unreasonableness, measured and applied according to a legal standard indicated by the "true construction of the statute", in determining whether the statutory power has been abused (Li, per Hayne, Kiefel and Bell JJ at [67] and [72]). Unreasonableness is a conclusion which may be applied to a decision "which lacks an evident and intelligible justification" (Li per Hayne, Kiefel and Bell JJ at [76]).
117 At a general level, it is evident that the applicant strongly disagrees with the Assistant Commissioner's decision. However, as Greenwood J emphasises in these passages, the question is not whether the applicant or the Court disagrees, even strongly, with the decision under review but rather, whether having regard to the proper construction of the statute, the decision lacks an evident and intelligible justification.
118 More specifically, the applicant alleges that the Assistant Commissioner exercised his powers unreasonably in the following respect:
Considering valid an agreement between two parties, as the Third respondent has determined the EPP agreement in the decision given on 22 February 2017, where one of the parties has never heard of the agreement or has never seen the agreement; it has never discussed the agreement with the other party and has never considered and signed the agreement; and consequently it was never aware of the content of the agreement or the personal information included in the agreement; it's something that no reasonable person can consider or determined as [a] valid agreement, or lawful agreement.
(Paragraph 4B(f), amended originating application at page 12).
119 The short point, however, is that the Assistant Commissioner was not seized with the task of determining whether the EPP constituted a valid or lawful agreement but relevantly with determining whether he was satisfied that there had been no interference with the applicant's privacy. As such, the ground cannot succeed.
120 Otherwise, the applicant's complaints, as best they can be discerned, disclose a misunderstanding of s 41(1) of the Privacy Act and, in particular, the evaluative judgment required to be undertaken by the Commissioner or his delegate in determining whether she or he is satisfied that there has been no interference with the applicant's privacy as a precondition to the exercise of the discretion. As explained above, the question for the Commissioner is not whether, objectively speaking, there has been an interference with the applicant's privacy. Rather, bearing in mind that the Act does not afford absolute protection to the privacy of individuals but "carves out" significant exceptions, the question was whether he was satisfied that there was no such interference for the purposes of the Privacy Act. It is clear from the explanation of the steps taken by the Assistant Commissioner which I summarised earlier at [41] above that he found that he was not so satisfied for rational, logical reasons based upon the information before him, applying the statutory framework under the Social Security Act pursuant to which the information was collected, used and disclosed by the Department. Those findings included, with respect to the applicant's central complaints, that:
(1) the Department had collected the information contained in the EPP for a lawful purpose because, in order for the applicant to qualify for the Newstart allowance for which she had applied, it was required to create an EPP under s 605 of the Social Security Act deemed suitable for her needs; and
(2) despite the applicant having not consented to the disclosure, her personal information was lawfully disclosed by the Department under s 202 of the Social Security (Administration) Act 1999 (Cth) for the purpose of delivering effective work-related services.
121 As such, the Assistant Commissioner found that the collection, use and disclosure of the information was not in breach of the APPs and the precondition to the exercise of discretion in s 41(1) of the Privacy Act was enlivened.
122 Furthermore, there is no express limitation upon the stage at which the discretion in s 41(1) can be exercised. To the contrary, subject to the requirements of procedural fairness, the apparent purpose of s 41(1) is to empower the Commissioner to decide not to investigate a complaint or to terminate a complaint at any stage when she or he reaches the requisite state of satisfaction, thereby ensuring that public funds and resources are directed towards resolving potentially meritorious complaints. Thus, for example, there is no reason why it could not be exercised to dispose of a complaint without even calling upon the person the subject of the complaint to respond where the Commissioner is satisfied, for example, that the nature of the allegations are such that they cannot constitute an interference with an individual's privacy and/or they are frivolous. That being so, it cannot be said to have been unreasonable for the Assistant Commissioner to have decided not to investigate the complaint at the time that he made his decision.
123 Fifthly, the applicant had requested that the Commissioner hold a hearing in relation to her matter under s 43A(1) of the Privacy Act. Section 43A(1) provides that an "interested party" as defined in the Act may request a hearing before the Commissioner makes a determination under s 52 of the Privacy Act in relation to the investigation. However, the Commissioner found that the applicant was not an interested party because no investigation had been opened into her allegations under s 40(1) of the Privacy Act. As such, the Commissioner correctly found that s 43A(1) did not apply and he was therefore not under any obligation to afford the applicant a hearing.
124 Finally the remaining grounds alleged against the Commissioner are unintelligible, unparticularised, and fail to specify the nature of the errors allegedly committed by the Commissioner. As the Commissioner submitted, they rise no higher than bare assertion. Nor were these grounds elaborated upon in oral or written submissions. In those circumstances, they must be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J) (applying WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] (Judge Lucev) and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969 (Siopis J)). In this regard, it is important to emphasise that the onus would lie upon the applicant to demonstrate jurisdictional error if the matter were to proceed to trial: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ). As such, the bare assertion of a reviewable error under the ADJR Act or jurisdictional error plainly cannot shift the onus to the respondents to disprove them.