Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a barrister or solicitor working in the area of employment law and/or human rights law before acting or relying on any of its content.

If you have concerns that your privacy has been breached a good starting point may be to consider making a complaint with a statutory body. More serious breaches of privacy may necessitate more serious action which will not be the focus of this article.

Powers of the Office of the Australian Information Commissioner (OAIC)

The Office of the Australian Information Commissioner (OAIC) is a statutory body established under the Australian Information Commissioner Act 2010 (Cth). Under the Act, an Australian Information Commissioner, Privacy Commissioner and the Freedom of Information Commissioner are appointed. It has the responsibility for regulating and providing advice on the Privacy Act 1988 (Cth), which confers a number of powers upon it. Broadly, these are:

  • Regulatory powers to encourage entities to comply with privacy practices;

  • Investigative powers in relation to alleged interferences with privacy; and

  • Enforcement powers to redress breaches of privacy.

Regulatory Powers to Encourage Compliance and Best Practice Privacy Practices

The Privacy Act confers on the Information Commissioner a range of regulatory and other enforcement powers to encourage compliance and best privacy practice. These include the power to:

  • Request entities, bodies or associations to develop codes of practice.

  • Direct agencies to provide the Commissioner with privacy impact assessments.

  • Monitor or assess the maintenance and handling of personal information.

Investigative and Enforcement Powers

Where there has been an alleged interference with privacy, the OAIC has a range of investigative and enforcement powers.

Investigative powers include to:

  • Investigate matters following the making of a complaint, or of their own initiative.

  • Attempt to conciliate complaints.

  • Decline to investigate complaints or take investigations further.

  • Conduct preliminary inquiries to determine whether an investigation should be opened.

  • Determine whether a hearing should be held in response to a complainant or respondent.

  • Require the production of information or a document.

  • Require a person to answer questions before the Information Commissioner under oath or affirmation.

  • Direct that a conference be held before the Information Commissioner by the complainant, respondent and other relevant person.

  • Refer complaints.

Enforcement powers include to:

  • Accept undertakings.

  • Bring proceedings to enforce an undertaking.

  • Make determinations.

  • Report to the Minister following assessments or monitoring activities.

  • Seek injunctive relief during the course of an investigation.

  • Apply for a civil penalty before the court for any civil penalty breaches.


Powers of the NSW Information and Privacy Commissioner

The functions of the Information and Privacy and Commissioner include reviewing the performance and decisions of agencies, as well as investigating and conciliating complaints made in relation to agencies, to ensure that they are acting in conformity with an Information Act. The source of the New South Wales Information and Privacy Commissioner’s powers is Part 3 of the Government Information (Information Commissioner) Act 2009 (NSW). Division 4 of that that Part outlines the Commissioner’s specific powers. Firstly, in exercising its functions, the Commission can compel an agency to provide it with any information necessary to conduct its investigation. Secondly, the Commissioner is authorised to enter any premise occupied by the agency under investigation at any time and inspect any record or thing on the premises. However, this entry power must not be exercised if it appears that any person has a ground of privilege, unless the privilege is of an agency or the person has apparently waived their privilege. Thirdly, the Commissioner can apply to the Supreme Court for an injunction to ensure that a person acts in conformity with an Information Act. Fourthly, the Commissioner has the power to hold formal inquiries in conjunction with its investigations. However, the Commissioner is not entitled to compel the disclosure of Cabinet information or inspect any record of Cabinet information. In addition to these specific powers, it should be noted that the Information and Privacy Commission can conduct its investigations in any way that it deems fit depending on the peculiar circumstances and needs of the matter at hand.

By Sebastian De Brennan, Barrister,

© 2017 Sebastian De Brennan. Barrister at Law