FEDERAL COURT OF AUSTRALIA Wijayaweera v Australian Information Commissioner [2012] FCA 99 Citation: Wijayaweera v Australian Information Commissioner [2012] FCA 99 Parties: ANUPRIYA WIJAYAWEERA v AUSTRALIAN INFORMATION COMMISSIONER File number: VID 1030 of 2011 Judge: GORDON J Date of judgment: 13 February 2012 Date of hearing: 13 February 2012 Date of last submissions: 13 February 2012 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 27 Counsel for the Applicant: The applicant appeared by telephone on his own behalf Counsel for the Respondent: Mr Brown Solicitor for the Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1030 of 2011 BETWEEN: ANUPRIYA WIJAYAWEERA Applicant AND: AUSTRALIAN INFORMATION COMMISSIONER Respondent JUDGE: GORDON J DATE OF ORDER: 13 FEBRUARY 2012 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant to pay the respondent's costs of the application, such costs fixed in the sum of $3,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1030 of 2011 BETWEEN: ANUPRIYA WIJAYAWEERA Applicant AND: AUSTRALIAN INFORMATION COMMISSIONER Respondent JUDGE: GORDON J DATE: 13 FEBRUARY 2012 PLACE: MELBOURNE REASONS FOR JUDGMENT INTRODUCTION 1 This is an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) for review of a decision of a delegate of the respondent, the Australian Information Commissioner (AIC) made on 24 August 2011 (the Decision). By the Decision, the AIC declined to investigate a complaint made by the applicant under s 40(1A) of the Privacy Act 1988 (Cth) (the Privacy Act). In general terms, the applicant alleges that Hudson Global Resources Pty Ltd (Hudson Global) has conducted, and continues to conduct, and has caused and is continuing to cause third parties to carry out unauthorised covert surveillance of him. LEGISLATIVE FRAMEWORK The functions of the Privacy Commissioner 2 The functions of the Privacy Commissioner in relation to interferences with privacy are set out in s 27 of the Privacy Act. That section provides that the Privacy Commissioner has the following functions: (1) … (a) to investigate an act or practice of an agency that may breach an Information Privacy Principle and, where the Commissioner considers it appropriate to do so, to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the investigation; … (ab) subject to Part V - to investigate an act or practice of an organisation that may be an interference with the privacy of an individual because of section 13A and, if the Commissioner considers it appropriate to do so, to attempt, by conciliation, to effect a settlement of the matters that gave rise to the investigation; … (2) The Commissioner has power to do all things that are necessary or convenient to be done for or in connection with the performance of his or her functions under subsection (1). … (Emphasis added). 3 In the performance of those functions, s 29 of the Privacy Act provides that the Privacy Commissioner shall: (a) have due regard for the protection of important human rights and social interests that compete with privacy, including the general desirability of a free flow of information (through the media and otherwise) and the recognition of the right of government and business to achieve their objectives in an efficient way; (b) take account of: (i) international obligations accepted by Australia, including those concerning the international technology of communications; and (ii) developing general international guidelines relevant to the better protection of individual privacy; … 4 An individual may make a complaint to the Privacy Commissioner under s 36(1) of the Privacy Act "about an act or practice that may be an interference with the privacy of the individual". The complaint must be in writing: s 36(3) of the Privacy Act. It is the duty of the members of staff of the Privacy Commissioner to provide appropriate assistance to a person who wishes to make a complaint and requires assistance to formulate a complaint: s 36(4) of the Privacy Act. Where the complaint is about an act or practice of an organisation, the organisation is the respondent: s 36(7) of the Privacy Act. Investigations 5 Section 40 of the Privacy Act provides for circumstances in which the Privacy Commissioner is to conduct investigations, including investigations of complaints made under s 36 of the Privacy Act. 6 Section 40(1A) of the Privacy Act provides that: The Commissioner must not investigate a complaint if the complainant did not complain to the respondent before making the complaint to the Commissioner under section 36. However, the Commissioner may decide to investigate the complaint if he or she considers that it was not appropriate for the complainant to complain to the respondent. (Emphasis added.) FACTS 7 As noted, the applicant's complaint to the AIC related to an alleged interference with his privacy by Hudson Global. The applicant alleges that Hudson Global uses third parties to carry out unauthorised surveillance of him. Applicant's complaint 8 The applicant's complaint was set out in a Privacy Act Complaint Form dated 11 August 2011. The Form stated: (1) The respondent [Hudson Global] holds the following information: (i) Official information gained from official interaction with the respondent, inclusive of name, job history, residential address, mobile phone number, references from previous employers. (ii) Extensive unofficial information gained from ex-employer St. Gobain Abrasives Ltd. (iii) Day to day information gained from clandestine electronic surveillance, conducted by the use of students from Melbourne University and Monash University with the knowledge of the Vice Chancellors of these institutes. Day to day information using physical surveillance conducted by the use of official private investigators as well as students, inclusive of foreign students of these universities, who do not have official clearance to work in Australia. (2) I have been under clandestine surveillance from the time I have lived in Melbourne since January 2008. The respondent with the aid of third parties used by my ex-employer St. Gobain Abrasives Ltd and organized fraudulent mental health treatment and had a say in my treatment mode in June 2008. When The Alfred hospital knew that I was under surveillance, I was given a forcible injection of, an antipsychotic which has been injurious to my health. (3) The respondent has instructed Dr. Dushyantha Illesinghe to abscond, and not reveal his address, so as to sabotage the court case against The Alfred, Dr. Illesinghe and 3 other doctors by myself as the plaintiff. It is believed Dr. Illesinghe has crucial evidence as to how the approach and the plan to forcibly hospitalize me was carried out. Dr. Illesinghe's staff has refused to respond to my queries as to his whereabouts since I filed my court case at the County Court on 5th April 2011. (4) It is believed the respondent has the control of access to my house, as he has sabotaged the previous court case Privacy Commissioner by arranging through a third party to steal documents relating to my case in the week leading to 13th May 2011, which was the hearing date. The respondent, along with other members of the recruitment industry organized for St. Gobain Abrasives Ltd to hold on to a false allegation against me-as an excuse to conduct surveillance on me for an extended period. The respondent was keen for St. Gobain Abrasives Ltd, not to be investigated for my privacy violation as they were the ones urging St. Gobain Abrasives Ltd to hold on to the false allegation and the same subcontractor was used by both parties to keep me under illegal surveillance. (5) On 9th February 2011, the respondent had influenced Steve van Aperen to place me with a group of seminar attendees that includes various recruitment industry members while diverting me from the main seminar that was held on 8th February 2011. The respondent among others appeared to have made defamatory statements concerning me, to Mr. van Aperen based on the false allegation by St. Gobain Abrasives Ltd. One of the attendees was Mr. Rodney Gadsden of Robuck Security, mobile phone no. … who I believe was coordinating my surveillance on that day. (6) Monash University was also instructed to allocate a special class from February 2011 to May 2011, with attendees from the respondent company and other human resources firms. The lecturer and some students appeared to have a detailed knowledge of my activities at my ex-employers and other very private personal activities of which only I should be aware. This class was a non routine class. (7) On 1st August 2011 at approximately 10.15pm at the bar adjacent to the Crown Casino gambling tables I was tailed by a female private investigator, with whom I entered into a conversation and concluded that she was an investigator. (8) Melbourne University students are frequently used illegally for 24 hour coverage - there is a large reservoir of Chinese/Korean students (over 20 of them) that are illegally instructed to get into private investigators vehicles and conduct illegal surveillance. This is with the full knowledge of the Vice Chancellor, Students Union and staff members of the Office of Environmental Programs (OEP). (9) The respondent has access to my vehicle no. … through interaction with my vehicle dealer, various documents have been stolen, my GPS settings has been altered several times, I believe the respondent has the knowledge of where exactly I am at any one given time. (10) The respondent uses among others a prominent PHD student who specializes in mobile network technology at Monash University who I am reluctant to name as his immigration status could be jeopardized. (11) The respondent appears to have placed Melbourne University students near my residence, one which was driving. vehicle number … and attempted to assault me in front of my house on 26th October 2010. (12) The respondent has used the third party and Melbourne University students to have me covered at my gym Fitness First, and certain details appear to have been stolen from my wallet, including credit card information. (13) The respondent has got hold of my credit card details and appears to have gone through all my credit card transactions over a long period of time, and contacted service providers, and talked to them I order to build up a psychological profile of me, and to discredit me as appropriate. (14) At the Chadstone Gym of Fitness FIRST at 9.30am on 31st July 2011, the following vehicles were assigned to me: … There were several other vehicles I failed to get the VIN number of, since I was not absolutely certain that they were assigned to me, but it is probable that they were. The AIC's decision 9 A delegate of the AIC declined to investigate the matter pursuant to s 40(1A) of the Privacy Act on the basis that the applicant had not first complained directly to the organisation the subject of the complaint, Hudson Global. Section 40(1A) of the Privacy Act prohibits the AIC from investigating a complaint if the complainant did not complain to the organisation the subject of the complaint before making the complaint, unless the AIC considers that it was not appropriate for the complainant to complain to the respondent: see [6] above. 10 The AIC's Decision records that: … I refer to your letter received on 17 August 2011 alleging that Hudson Global Resources Australia Pty Ltd (Hudson Global) interfered with your privacy by improperly collecting your personal information through covert surveillance. I have treated your letter as a complaint under section 36 of the Privacy Act 1988 (Cth) (the Act). Section 40(1A) of the Act requires that the Information Commissioner must not investigate your complaint if you have not complained directly to the respondent. However, the Commissioner does have a discretion to investigate if he considers it would be inappropriate for you to have complained to the respondent. You have indicated on your complaint form that you have not complained directly to Hudson Global. Based on your submissions, I am not satisfied that it would be inappropriate for you to complain directly to Hudson Global. Therefore, I am declining to investigate your complaint under section 40(1A) of the Act. Reasons for my decision When considering whether it would be inappropriate for a complainant to complaint directly to a respondent, the Commissioner may take a number of factors into account. These factors include any language or literacy barriers a complainant may have, and where complaining to a respondent would be ineffective. In your view, contacting Hudson Global would be pointless as its surveillance of you is too extensive to be unknown to authorities, and appears to have been sanctioned by Federal and State politicians. Additionally, you note that there is insufficient proof to investigate the primary instigator of the alleged surveillance. I am not convinced you have established that complaining directly to Hudson Global would be inappropriate in this instance. The extent to which the surveillance is known or sanctioned by authorities does not appear to have any obvious bearing on Hudson Global's ability to investigate or respond to your complaint. Further, while I acknowledge your concern that there is insufficient proof for Hudson Global to investigate your complaint, it does not follow that complaining directly to Hudson Global would be pointless. On the contrary, a direct complaint to Hudson Global may help establish whether your concerns about proof are founded. As such, I see no reason why you would be unable to complaint directly to Hudson Global, or why any such complaint would be ineffective. APPLICANT'S CLAIMS 11 In his Statement of Claim, the applicant alleges that the AIC should have exercised the discretion under s 40(1A) of the Privacy Act to investigate his complaint on the basis that the matters raised by the applicant are very serious and that it is in the public interest that Hudson Global be investigated. Paragraphs 4 to 6 of his claim stated: 4. The matters raised by the applicant are very serious, resulting in psychiatric confinement and the [AIC] did not give enough consideration in the earlier case, resulting in the earlier case ending up in interlocutory arguments. 5. The applicant is of the view that the [AIC] should apply his discretion under s 40(1A) of the Privacy Act 1988 to investigate the said corporation. 6. Hudson Global Resources Pty Ltd is one of the most prominent companies in the human resources sector in Australia, and it is a matter of public concern that the company treated a client or competitor in such a manner, and violated its core business principles of privacy. 12 In support of that contention, the applicant's reply stated: … 11. This sort of long standing, extensive incident including significant violation of the human rights of the Applicant has never before happened in Australia in the Corporate sector. 12. Resources of semi government institutions such as Melbourne University as well as Queensland University of Technology have been used. 13. The [AIC] has refused an earlier request to investigate the ex employer of the Applicant, Saint Gobain Abrasives Pty Ltd. and the case no. VID988/2010 ended up in interlocutory arguments caused by a self evident legal error, relating to the time limits introduced by the Respondent. 14. This kind of extensive and illegal surveillance across state boundaries could never have been carried out without the tacit agreement and assent of the government. 15. Due to the futility of complaining to Hudson, and the seriousness and unprecedented nature of the actions on the Applicant by a group of recruitment agents headed by Hudson, and legally supported by SGA, the Applicant requested for the second time, that the [AIC] invoke s 40(1A) of the Privacy Act 1988 and investigate Hudson. SUBMISSIONS The Applicant submits the following non compliance of the ADJR Act 1977 with regard to the statement of reasons. 16. The statement of reasons do not comply with s 13 of the ADJR Act 1977 ("ADJR") which requires "….. to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which these findings were based and giving reasons for the decisions." a. There is no reference to questions of fact b. There is no reference to evidence Further the Applicant submits the following grounds of review: 17. There is a breach of natural justice under s 5(l)(a) of the ADJR with regards to: a. Fair hearing b. Bias c. Evidence 18. Under s 5(l)(f) of the ADJR, the decision also involved an error of law because the following were not applied in reaching the decision: a. The principle of Proportionality was not applied b. The following sections of the Victorian Charter of Human Rights and Responsibilities were not taken into consideration i. Section 13 relating to privacy ii. Section 10 protection from torture and cruel, inhuman or degrading treatment 19. Due to the matters in Paragraph 3 not being followed, s 5(1)(b) of the ADJR was also not followed. 20. Under s 5(1)(e) of the ADJR, there is an improper exercise of power, in pursuance of s 5(1)(e) of the ADJR the following grounds which fall under breach of s 5(l)(e) are alleged. 21. Under s 5(2)(a) of the ADJR, taking irrelevant considerations into account. The following consideration is irrelevant: a. The Applicant's knowledge of whether he had enough English knowledge to write a letter or otherwise communicate with Hudson. Given that the OAIC knew that the Applicant represented himself before the Federal Court in May 2011, this is both irrelevant and is meant to ridicule the Applicant and his tack of power in the face of senior government bureaucrats and politicians refusing to recognise the Applicant's human rights. 13 Before turning to deal with each of these contentions in turn, a number of procedural matters should be noted. In accordance with the directions made on 22 November 2011, the AIC filed a defence to the claim, a copy of which was served on the applicant. The applicant filed at least eight affidavits in support of his claim. ANALYSIS 14 The AIC submitted that the application should be dismissed. I will deal with the specific grounds of review raised by the applicant in turn. 15 First, no application was made under s 13 of the ADJR Act for a statement in writing. That is not surprising. By the letter dated 24 August 2011, the AIC provided its reasons for decision to the applicant. Those reasons for decision detailed the material questions of fact, evidence and the reasons for the decision: see [10] above. 16 Second, there is no evidence that the applicant was denied natural justice: s 5(l)(a) of the ADJR Act. The applicant gave his reasons for not contacting Hudson Global in his complaint and those reasons were taken into account by the AIC: see [10] above. 17 Third, the "principle of proportionality". That principle is that a reasonable proportionality must exist between the designated object or purpose and the means selected by the law for achieving that object or purpose: Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 29. The concept of reasonable proportionality is now an accepted test of validity of statutes and regulations: see Nationwide News at 29. However, there is some debate about whether it applies to judicial review of administrative action: see, by way of example, Bruce v Cole (1998) 45 NSWLR 163 at 185; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367; Cunliffe v Commonwealth (1994) 182 CLR 272 at 356-357; Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 at [11]-[14]. In any event, I am not satisfied that it has any application to the facts of the current matter. 18 Fourth, there is nothing to suggest that the AIC Decision involved an error of law: s 5(l)(f) of the ADJR Act. 19 Fifth, the applicant referred to the Charter of Human Rights and Responsibilities (the Charter). The Charter was enacted by the Victorian Government under the Charter of Human Rights and Responsibilities Act 2006 (Vic). State governments do not have the constitutional power to legislate with respect to the Commonwealth: Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 424-425 and 440; Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372 at 377-378. Accordingly, the Charter has no application to a Commonwealth authority such as the AIC. 20 Sixth, the applicant alleged that the AIC did not follow proper procedure: s 5(1)(b) of the ADJR Act. In his reply, the applicant referred to an earlier paragraph of the reply, paragraph 3. That paragraph stated that two named individuals were introduced to Hudson Global by other parties. Neither that paragraph, the balance of the pleadings filed by the applicant or any of the affidavit material filed by the applicant provides any basis for that contention. Similarly, the applicant alleged that the AIC improperly exercised his power: s 5(l)(e) of the ADJR Act. Again, none of the pleadings or the affidavit material filed provided any basis for that contention. 21 Seventh, the applicant contended that the AIC took account of irrelevant considerations: s 5(2)(a) of the ADJR Act. The matter relied upon by the applicant in relation to this ground is set out in [12] above. As the Privacy Act expressly provides, language or literacy barriers are relevant considerations when deciding whether to exercise the discretion under s 40(1A). The applicant appeared before me in person by telephone. He had filed substantial material in English in support of the allegations. There was nothing to suggest that at the time the applicant lodged the complaint with the AIC or at any later time there were any language or literacy barriers. In any event, this aspect of the applicant's grounds of review does not assist. As the AIC Decision records, language or literacy barriers were not determinative of the decision to decline to investigate the applicant's complaint. 22 Eighth, the applicant alleged that the AIC placed undue weight on a "factor of no importance". The factor was not identified. This aspect fails at the outset. 23 Ninth, the applicant alleged that the AIC failed to take account of relevant considerations: s 5(2)(b) of the ADJR Act. The AIC submitted that the factors listed in paragraphs 22(a) to (f) of the applicant's reply (see [13] above) have no bearing on the exercise of the power in s 40(1A) by the AIC. I agree. This ground of review fails. 24 Finally, the applicant alleged that the AIC exercised his power in bad faith (s 5(2)(d) of the ADJR Act), exercised his power at the behest of another person (s 5(2)(e) of the ADJR Act), exercised his power in accordance with a rule or policy without regard to the merits of the case (s 5(2)(f) of the ADJR Act) or exercised his power in s 40(1A) of the Privacy Act in manner so unreasonable that no reasonable person could have so exercised the power (s 5(2)(g) of the ADJR Act). These are serious allegations. They are devoid of substance. Neither the pleadings filed by the applicant or any of the affidavit material filed by the applicant provide any basis for any of these contentions. CONCLUSION AND ORDERS 25 For those reasons, it was open to the AIC to decline to investigate the complaint on the basis that the applicant had not first complained to Hudson Global. The decision did not involve any error of law pursuant to s 5 of the ADJR Act. 26 The application should be dismissed with costs. 27 The AIC sought its costs fixed in the sum of $3,000. It submitted that its actual costs were in the vicinity of $5,000. I would fix its costs in the sum of $3,000. For those reasons, the orders of the Court are as follows: 1. The application is dismissed. 2. The applicant to pay the AIC's costs of the application, such costs to be fixed in the sum of $3,000. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate: Dated: 15 February 2012