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Contents (1998 - 133)
Privacy and Personal Information Protection Act 1998 No 133
Current version for 1 July 2017 to date (accessed 19 November 2017 at 04:40)
Part 5
Part 5 Review of certain conduct
52   Application of Part
(1)  This Part applies to the following conduct:
(a)  the contravention by a public sector agency of an information protection principle that applies to the agency,
(b)  the contravention by a public sector agency of a privacy code of practice that applies to the agency,
(c)  the disclosure by a public sector agency of personal information kept in a public register.
(2)  A reference in this Part to conduct includes a reference to alleged conduct.
(3)  This Part does not apply to any conduct that occurred before the commencement of this Part.
(4)  Section 53 (Internal reviews) of the Administrative Decisions Review Act 1997 does not apply to or in respect of conduct to which this Part applies.
53   Internal review by public sector agencies
(1)  A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.
(1A)  There is no entitlement under this section to the review of the conduct of a Minister (or a Minister’s personal staff) in respect of a contravention of section 15 (Alteration of personal information).
Note.
 Any such conduct can still be administratively reviewed by the Tribunal. See section 55 (1A).
(2)  The review is to be undertaken by the public sector agency concerned.
(3)  An application for such a review must:
(a)  be in writing, and
(b)  be addressed to the public sector agency concerned, and
(c)  specify an address in Australia to which a notice under subsection (8) may be sent, and
(d)  be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and
(e)  comply with such other requirements as may be prescribed by the regulations.
(4)  Except as provided by section 54 (3), the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application. That individual must be, as far as is practicable, a person:
(a)  who was not substantially involved in any matter relating to the conduct the subject of the application, and
(b)  who is an employee or officer of the agency, and
(c)  who is otherwise suitably qualified to deal with the matters raised by the application.
(5)  In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by:
(a)  the applicant, and
(b)  the Privacy Commissioner.
(6)  The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for an administrative review of the conduct concerned.
(7)  Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following:
(a)  take no further action on the matter,
(b)  make a formal apology to the applicant,
(c)  take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant),
(d)  provide undertakings that the conduct will not occur again,
(e)  implement administrative measures to ensure that the conduct will not occur again.
(7A)  A public sector agency may not pay monetary compensation under subsection (7) if:
(a)  the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and
(b)  the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and
(c)  the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate.
(8)  As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of:
(a)  the findings of the review (and the reasons for those findings), and
(b)  the action proposed to be taken by the agency (and the reasons for taking that action), and
(c)  the right of the person to have those findings, and the agency’s proposed action, administratively reviewed by the Tribunal.
54   Role of Privacy Commissioner in internal review process
(1)  A public sector agency that receives an application under section 53 must:
(a)  as soon as practicable after receiving the application notify the Privacy Commissioner of the application, and
(b)  keep the Privacy Commissioner informed of the progress of the internal review, and
(c)  inform the Privacy Commissioner of the findings of the review and of the action proposed to be taken by the agency in relation to the matter.
(2)  The Privacy Commissioner is entitled to make submissions to the agency in relation to the subject matter of the application.
(3)  The Privacy Commissioner may, at the request of the agency concerned:
(a)  undertake the internal review on behalf of the agency, and
(b)  make a report to the agency in relation to the application.
(4)  The Privacy Commissioner is entitled to charge an appropriate fee for that service.
(5)  Section 53 (7), (7A) and (8) apply in respect of an internal review that is undertaken by the Privacy Commissioner on behalf of an agency.
55   Administrative review of conduct by Tribunal
(1)  If a person who has made an application for internal review under section 53 is not satisfied with:
(a)  the findings of the review, or
(b)  the action taken by the public sector agency in relation to the application,
the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53.
(1A)  A person (the applicant) who is aggrieved by the conduct of a Minister (or a Minister’s personal staff) constituting a contravention of section 15 (Alteration of personal information) may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct.
(2)  On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:
(a)  subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,
(b)  an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,
(c)  an order requiring the performance of an information protection principle or a privacy code of practice,
(d)  an order requiring personal information that has been disclosed to be corrected by the public sector agency,
(e)  an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,
(f)  an order requiring the public sector agency not to disclose personal information contained in a public register,
(g)  such ancillary orders as the Tribunal thinks appropriate.
(3)  Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997.
(4)  The Tribunal may make an order under subsection (2) (a) only if:
(a)  the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and
(b)  the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.
(4A)  The Tribunal may not make an order under subsection (2) (a) if:
(a)  the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and
(b)  the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and
(c)  the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate.
(5)  If, in the course of an administrative review, the Tribunal is of the opinion that the chief executive officer or an employee of the public sector agency concerned has failed to exercise in good faith a function conferred or imposed on the officer or employee by or under this Act (including by or under a privacy code of practice), the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister (if any) for the public sector agency.
(6)  The Privacy Commissioner is to be notified by the Tribunal of any application for an administrative review. The Privacy Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to an administrative review.
(7)  The Information Commissioner is to be notified by the Tribunal of any application for a review under this section that concerns the provision of government information by an agency (within the meaning of the Government Information (Public Access) Act 2009). The Information Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to such a review.
56   (Repealed)