Complainant not heard on issue of whether to refer case to external dispute resolution
Australia’s Federal Court has found that the Australian information commissioner fundamentally misunderstood and misconstrued the nature of a recent privacy-related complaint, which challenged a company’s refusal to provide private information, not its refusal to delete the information.
In February 2025, the applicant in Bilal v Australian Information Commissioner [2026] FCA 376 asked The Procare Group Pty Ltd for access to all personal information it held about him. In March 2025, the applicant made another request to Procare.
Denying the request, Procare claimed it was exempt from the requirements in the Privacy Act 1988 (Cth) because it collected or handled the requested personal information as a service provider under a state contract.
On 24 April 2025, after the denial of another request, the applicant brought a complaint under s 36 of the Privacy Act before the Office of the Australian Information Commissioner. The complaint asked the Australian information commissioner to:
On 22 August 2025, the commissioner’s delegate declined to investigate the applicant’s privacy complaint under s 41 of the Privacy Act. The applicant applied for a judicial review of this decision.
The commissioner conceded that her delegate erred by basing the decision on the existence of a nonexistent fact and therefore lacked the evidence to justify making the decision under ss 5(1)(h) and 5(3)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).
The commissioner explained that the delegate found that the Australian Financial Complaints Authority could properly address the privacy complaint, without first inquiring whether that authority was an appropriate external dispute resolution scheme to investigate the complaint.
Thus, the commissioner acknowledged that the court should set aside the decision and return the matter to her for a fresh decision under s 16(1)(b) of the ADJR Act. Despite the concession, the parties disagreed on how to characterise the error and what relief to grant.
The Federal Court of Australia set aside the 22 August 2025 decision declining to investigate the applicant’s complaint under s 16(1)(a) of the ADJR Act.
The court referred the complaint to the respondent commissioner under s 16(1)(b) of the ADJR Act to issue a decision according to law. The court ordered the commissioner to pay the applicant’s application costs.
The court declared that the commissioner unlawfully failed to afford the applicant procedural fairness – specifically, an opportunity to be heard on the issue of whether his complaint was suitable for reference to an external dispute resolution scheme – before deciding the complaint under s 41 of the Privacy Act.
The court ruled that the commissioner’s misunderstanding of the complaint’s nature fell under multiple grounds in s 5(1) of the ADJR Act, including s 5(1)(d).
The court noted that s 41(1) of the Privacy Act empowered the commissioner to decide not to investigate “an act or practice about which a complaint has been made.” The court held that choosing not to investigate the act that was not the subject of the complaint constituted a miscarriage of that power.
The court thus saw an obvious and material error that justified quashing or setting aside the decision under s 16(1)(a) of the ADJR Act.
