Express law No. 01

27 May 2004

Privacy complainants can go directly to the Federal Court

The
Federal Court has recently held that individuals who
believe their privacy has been, is being, or may be breached
by a Commonwealth agency or a private sector organisation
may, without first making a complaint to the Privacy
Commissioner, go directly in the Federal Court or the
Federal Magistrates court for an injunction restraining
the agency or organisation from engaging in the conduct
that is, or would constitute, a breach of privacy.

Last
Friday the Federal Court handed down a decision in Seven
Network (Operations) Limited v Media Entertainment
and Arts Alliance [2004] FCA 637 (21 May 2004) in which,
among other things, the court held:

Seven was entitled
take action in the Federal Court in accordance with section
98 of the Privacy Act 1988,
without
first making a complaint to the Privacy Commissioner.
Seven could seek an injunction restraining MEAA (a
union representing
workers at Seven Network) from engaging in conduct
that would constitute a contravention of the National
Privacy
Principles in the Privacy Act to which MEAA was bound
(see paragraphs 35-40).

In so holding, the Court
said there was no reason to think that the position would
be any different
if Seven
had been
taking action against an (public sector) agency
in relation to an alleged breach of the Information
Privacy Principles;
and after examining the merits of Seven's claim,
and considering whether MEAA had breached certain
of the
National Privacy
Principles, Seven was entitled to an injunction.

The court also indicated that it would grant positive
orders requiring MEAA to take certain actions,
in terms to be
agreed at a later date.

A detailed case note
will be included in the next edition of In the Know,
due out in late
June 2004.

For further information please contact:

Justin Hyland
Senior Lawyer
Australian Government Solicitor
T: 02 6253 7417 F: 02 6253 7381
justin.hyland@ags.gov.au

Important: The material in Express
law is provided as an early, interim view for general
information only and further
analysis on the matter may be prepared by AGS. The material
should not be relied upon for the purpose of a particular
matter. Please contact AGS before any action or decision
is taken on the basis of any of the material in this message.