49Discretion not to investigate

##### 49 Discretion not to investigate (1) Where a Commonwealth employee has made an application to the Agency with respect to action taken by a Department or Commonwealth authority, the Agency may, in its discretion, decide not to investigate the action or, if it has commenced to investigate the action, decide not to investigate the action further: (a) if the Agency is satisfied that the employee became aware of the action more than 12 months before the application was made to the Agency; or (b) if, in the opinion of the Agency: (i) the application is frivolous or vexatious or was not made in good faith; (ii) the employee has a right to apply to another person or authority in relation to the action and it is more appropriate that the action be dealt with by that person or authority rather than by the Agency; or (iii) an investigation, or further investigation, of the action is not warranted having regard to all the circumstances. (1A) Where: (a) an application has been made to the Agency with respect to particular action; and (b) because the Agency is of the opinion that it is more appropriate that the action be dealt with by the Privacy Commissioner in the performance of the functions referred to in paragraph 27(1)(a) or 28(1)(b) or (c) of the Privacy Act 1988, the Agency decides, under subparagraph (1)(b)(ii) of this section, not to investigate the action, or not to investigate the action further; the Agency shall: (c) transfer the application to the Privacy Commissioner; (d) forthwith give notice in writing to the applicant stating that the application has been so transferred; and (e) give to the Privacy Commissioner any information or documents that relate to the application and are in the possession, or under the control, of the Agency. (1B) An application transferred under subsection (1A) shall be deemed to be a complaint made in writing to the Privacy Commissioner under Part V of the Privacy Act 1988. (1C) In subsections (1A) and (1B), Privacy Commissioner means the Privacy Commissioner within the meaning of the Privacy Act 1988. (1D) The Agency may decide to transfer an application to the Ombudsman if the Agency is of the opinion: (a) that the application could have been made to the Ombudsman as a complaint under section 7 of the Ombudsman Act 1976; and (b) that the subject‑matter of the application could be more conveniently or effectively investigated by the Ombudsman. (1E) If the Agency makes a decision under subsection (1D), the Agency must: (a) transfer the application to the Ombudsman as soon as is reasonably practicable; and (b) give the Ombudsman any information or documents relating to the application that are in the possession, or under the control, of the Agency; and (c) as soon as is reasonably practicable, give the applicant written notice that the application has been transferred to the Ombudsman. (1F) An application transferred under subsection (1E) is to be taken to be a complaint made to the Ombudsman under section 7 of the Ombudsman Act 1976. (2) Where a Commonwealth employee has exercised, or exercises, a right to cause action to which his or her application relates to be reviewed by a court or by a tribunal constituted by or under an enactment, the Agency shall not investigate, or investigate further, as the case may be, the action unless the Agency is of the opinion that there are special reasons justifying the investigation of the action or the investigation of the action further. (3) Where a Commonwealth employee has made an application to the Agency with respect to action taken by a Department or Commonwealth authority and: (a) the Agency decides under subsection (1) not to investigate the action, or not to investigate the action further, and subsection (1A) does not require the Agency to transfer the application; or (b) the Agency decides that, by reason of subsection (2), it is not permitted to investigate the action, or to investigate the action further; the Agency shall inform the employee in writing of its decision.