Source: Privacy Commissioner
We try to facilitate a resolution to individual privacy complaints wherever that is possible and appropriate in the circumstances of the case. There are a number of mechanisms in the Privacy Act that allow us to do this:
- Section 77 of the Privacy Act says that at any time after receiving a complaint, and before investigating, the Commissioner may decide to use best endeavours to try to resolve a complaint and seek a reassurance from the agency concerned that the issue that led to the complaint has now been sorted.
- Section 83 of the Privacy Act says that at any time during an investigation of a complaint (about any of the principles/rules), the Commissioner may decide to use best endeavours to secure a settlement of the complaint, and (if appropriate) a satisfactory assurance from the agency that there will not be a repetition of the action that gave rise to the complaint, or of any similar action.
- Section 94(2) says that if the Commissioner determines a complaint (about anything other than access or charging) has substance, then the Commissioner must use best endeavours to secure a settlement of the complaint and an assurance from the agency that there will not be a repetition of the action that gave rise to the complaint, or of any similar action.
- Section 91(3) says the same, about an access complaint. Where it is a complaint about charging, we will usually try to settle that under section 83 (if we can), but if we cannot, section 93(2) gives the Commissioner power to make a determination about the charge.
How do we use our ‘best endeavours’?
Usually, we do this by way of a conciliation meeting between the parties, facilitated by an OPC staff member. Conciliation is a dispute resolution process similar to mediation – the difference is that a conciliator is a subject matter expert. Where conciliation isn’t appropriate, in some cases we will act as the ‘go between’ in shuttle negotiations.
‘Best endeavours’ won’t look the same in every case. We have to take into account all the circumstances of the case, including the conduct and wishes of the parties and the resources of our Office, when determining what is appropriate in each case.
We take a pragmatic approach to resolving complaints, and where a complaint is about access to personal information we would not usually conciliate, or try to resolve the matter using shuttle negotiations. This is because a complaint about access is either resolved by the granting (by the agency concerned) of access to the information requested, or by us reviewing the withheld information, and forming a view on whether the agency has a proper basis for its decision to withhold that information. Due to the secrecy obligations we have under the Privacy Act we cannot discuss withheld information and it wouldn’t usually be appropriate for the agency concerned to meet with the complainant in these circumstances, because they can’t discuss the information withheld either. However, we have conciliated complaints about access to information in some cases – for example where it appears to us the parties are at cross purposes about the scope of a request and facilitating a conversation will allow them to understand each other and the agency to respond to a request.
If one party makes an offer to settle a complaint, we are obliged to put that offer to the other party. This does not mean that we approve or endorse the offer.
What’s a conciliation?
Conciliation is a form of alternative dispute resolution. It is similar to mediation, except the neutral third party has expertise in the issue in dispute. We have specially trained staff who can run this process.
We guide the conversation and help provide some structure, but the parties decide their own outcome. We are impartial, and we can’t compel an outcome, but we can give guidance on the Privacy Act if needed. We are also able to provide information on what might happen if the matter isn’t settled in the meeting.
What’s in it for me?
There are many benefits of resolving your complaint though conciliation – if we are able to achieve a settlement through this process it can help the parties to be able to move forward and get some closure. It’s also an opportunity to ask the other party questions, human to human, to understand what went wrong, and what impact that has had. It is particularly useful where there is an ongoing relationship between the parties.
How does this work in practice?
We have information about what the process looks like, and a conciliation preparation toolkit (opens to PDF, 187KB).
If both parties are willing to meet, we will work out who should attend and the work out the logistics. These meetings usually take place by Zoom or in person, and take two-four hours, depending on the issues to be discussed. We tailor the process to the parties and we will make reasonable adjustments if any of the parties have communication, cultural, disability or other needs. You can also have a support person or lawyer attend to support you, but you do not need one.
To get the most out of your conciliation, you should be prepared to be open to hearing and trying to understand the other party’s perspective, speak openly about your own experience and be willing to be flexible about the outcome.
The content of the conversation will be confidential, but our Office may take what is discussed into account when we are considering the appropriate next steps for the file.
What does a ‘settlement’ look like?
There’s no formula for determining what a good resolution looks like: ultimately that’s up to the parties. An explanation and a heartfelt apology can go a long way to resolving a complaint.
Often complainants are seeking compensation, and in some cases that may be appropriate. We see all kinds of creative solutions though – that’s the beauty of getting people in the room and brainstorming to solve the problem together.
If we are able to reach a resolution of the complaint that will be documented in a settlement agreement, and both parties will have the opportunity to seek legal advice and contribute to the wording of the agreement.
If an agreement is reached, it will be in full and final settlement of the privacy complaint, and the matter can’t be pursued further in the Human Rights Review Tribunal.
What happens if we don’t settle?
If the conciliation meeting has not led to a resolution or a reasonable settlement offer, we will consider the appropriate next steps.
If we have notified under section 77, we may decide to formally investigate the complaint and form a view on whether there has been an interference with the complainant’s privacy. Alternatively, we may decide not to further consider the complaint if we consider this is unnecessary or inappropriate, or where, in the Commissioner’s opinion, one of the grounds for decline set out in section 74 applies.
If we are already investigating, we may make a finding about the substance of the complaint.
In appropriate circumstances the Commissioner may also consider taking additional steps available to him under the Privacy Act. This may include taking action under our Compliance and Regulatory Action Framework, referring the matter to the Director of Human Rights Proceedings or issuing an Access Direction.
If the agency has made a reasonable settlement offer, we will usually consider that the Commissioner’s involvement is no longer necessary. This is so even if the complainant doesn’t want to accept the offer. Our Office has limited resources, so where we consider there is a fair offer of resolution open for acceptance by the complainant, we will usually consider our further involvement is not necessary. Read an example of where this happened.
Whatever we decide, we will let the parties know as soon as practicable. If we decide to take no further action, we will close our file, and the complainant will have the right to take their complaint to the Human Rights Review Tribunal.
