Complaints to the Commissioner

Contributed by AjunthaThinakaran and current to 27 July 2018

Individuals may complain to the OAIC if they believe that their privacy has been infringed as stated above.

The OAIC will normally investigate a complaint only after the person has complained to the individual, agency or organisation alleged to have breached the complainant’s privacy, and given them adequate opportunity to respond.

Section 33C of the Privacy Act establishes that the Commissioner may conduct an assessment relating to the following:

• the Australian Privacy Principles (s 33C(1)(a)(i))
• a registered APP code (s 33C(1)(a)(ii))
• credit information files and credit reports held by credit reporting agencies and credit providers (s 33C(1)(b))
• tax file number recipients (s 33C(1)(c))
• data matching programs (s 33C(1)(d))
• claims information associated with the Medicare Benefits Scheme and the Pharmaceutical Benefits Scheme (s 33C(1)(e)).
• s 28A(1)(c) of the Privacy Act gives the Commissioner the ability to examine the records of the Commissioner of Taxation in relation to tax file numbers and tax file number information.
• under s 309 of the Telecommunications Act 1997, the Commissioner has the power under to monitor compliance with certain record keeping requirements of telecommunications organisations.

[Reference: https://www.oaic.gov.au/privacy-law/assessments/ ]

Most complaints to the OAIC are resolved through negotiation and conciliation between the parties. However, the Australian Privacy Commissioner has the power, if the complaint is substantiated, to make a formal determination, including for payment of compensation. If a determination is made and the respondent agency or organisation does not comply with its terms, the Australian Privacy Commissioner or the complainant may approach the Federal Court or the Federal Magistrates Court to seek enforcement via a new (de novo) hearing. Thus far, the Office has never needed to take this step.

If the Australian Privacy Commissioner forms the opinion that a TFN or credit reporting offence may have been committed, the matter will be referred as appropriate to the Commissioner of the Australian Federal Police or the Commonwealth Director of Public Prosecutions for possible criminal investigation.