Privacy Act 1988

PART V - INVESTIGATIONS ETC.  

Division 2 - Determinations following investigation of complaints  

SECTION 52   DETERMINATION OF THE COMMISSIONER  

52(1)    
After investigating a complaint, the Commissioner may:

(a)    make a determination dismissing the complaint; or

(b)    

find the complaint substantiated and make a determination that includes one or more of the following:

(i) a declaration:

(A) where the principal executive of an agency is the respondent - that the agency has engaged in conduct constituting an interference with the privacy of an individual and must not repeat or continue such conduct; or

(B) in any other case - that the respondent has engaged in conduct constituting an interference with the privacy of an individual and must not repeat or continue such conduct;

(ia) a declaration that the respondent must take specified steps within a specified period to ensure that such conduct is not repeated or continued;

(ii) a declaration that the respondent must perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant;

(iia) a declaration that the respondent must prepare and publish, or otherwise communicate, a statement about the conduct (see section 52A );

(iii) a declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice the subject of the complaint;

(iv) a declaration that it would be inappropriate for any further action to be taken in the matter.

52(1A)    

After investigating an act or practice of a person or entity under subsection 40(2) , the Commissioner may make a determination that includes one or more of the following:

(a)    a declaration that:

(i) the act or practice is an interference with the privacy of one or more individuals; and

(ii) the person or entity must not repeat or continue the act or practice;

(b)    a declaration that the person or entity must take specified steps within a specified period to ensure that the act or practice is not repeated or continued;

(ba)    

a declaration that the respondent must prepare and publish, or otherwise communicate, a statement about the conduct (see section 52A );

(c)    a declaration that the person or entity must perform any reasonable act or course of conduct to redress any loss or damage suffered by one or more of those individuals;

(d)    a declaration that one or more of those individuals are entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice;

(e)    a declaration that it would be inappropriate for any further action to be taken in the matter.

52(1AAA)    

Without limiting subparagraph (1)(b)(ia) or paragraph (1A)(b) , the steps specified by the Commissioner may include a requirement for the respondent to:

(a)    engage, in consultation with the Commissioner, a suitably qualified independent adviser to review:

(i) the acts or practices engaged in by the respondent that were the subject of the complaint; and

(ii) the steps (if any) taken by the respondent to ensure that the conduct referred to in the determination is not repeated or continued; and

(iii) any other matter specified in the declaration that is relevant to those acts or practices, or that complaint; and

(b)    provide a copy of the review to the Commissioner.

52(1AA)    

The steps specified by the Commissioner under subparagraph (1)(b)(ia) or paragraph (1A)(b) must be reasonable and appropriate.

52(1AB)    

The loss or damage referred to in paragraph (1)(b) or subsection (1A) includes:

(a)    injury to the feelings of the complainant or individual; and

(b)    humiliation suffered by the complainant or individual.

52(1B)    

A determination of the Commissioner under subsection (1) or (1A) is not binding or conclusive between any of the parties to the determination.

52(2)    
The Commissioner shall, in a determination, state any findings of fact upon which the determination is based.

52(3)    
In a determination under paragraph (1)(a) or (b) (other than a determination made on a representative complaint), the Commissioner may include a declaration that the complainant is entitled to a specified amount to reimburse the complainant for expenses reasonably incurred by the complainant in connection with the making of the complaint and the investigation of the complaint.

52(3A)    

A determination under paragraph (1)(b) or subsection (1A) may include any order that the Commissioner considers necessary or appropriate.

52(3B)    
(Repealed by No 197 of 2012)

52(4)    
A determination by the Commissioner under subparagraph (1)(b)(iii) on a representative complaint:

(a)    may provide for payment of specified amounts or of amounts worked out in a manner specified by the Commissioner; and

(b)    if the Commissioner provides for payment in accordance with paragraph (a), must make provision for the payment of the money to the complainants concerned.

52(5)    
If the Commissioner makes a determination under subparagraph (1)(b)(iii) on a representative complaint, the Commissioner may give such directions (if any) as he or she thinks just in relation to:

(a)    the manner in which a class member is to establish his or her entitlement to the payment of an amount under the determination; and

(b)    the manner for determining any dispute regarding the entitlement of a class member to the payment.

52(5A)    

The Commissioner may publish a determination made under this section on the Commissioner ' s website.

52(6)    
In this section:

complainant
, in relation to a representative complaint, means the class members.

[ Commissioner's Note: Section 16(3) of Law and Justice Legislation Amendment Act 1993 , No 13 of 1994, provides that amendments made by Act No 13 of 1994 relating to representative complaints do not apply to complaints lodged before the commencement of the amendment.]