Express law No. 12

3 December 2004

AAT awards compensation for breach of privacy

For the first
time, the Administrative Appeals Tribunal has considered
and upheld an application for a review
of a determination of the Federal Privacy Commissioner
not to award damages for breach of privacy. In a unanimous
decision, AAT President Justice Downes and the other
members set out the principles relevant to assessment
of compensation under the Commonwealth Privacy Act
1988.
The Tribunal held the complainant was entitled to 'a
restrained but not minimal' award of compensation
for injury to his feelings and humiliation of $8,000.

Rummery
and Federal Privacy Commissioner and Department of Justice
and Community Safety

[2004] AATA 1221 (22 November 2004)

In Rummery the applicant
sought review of a determination of the Privacy Commissioner
as to the amount of compensation.
The Privacy Commissioner determined (determination no 5
of 2004) that Mr Rummery's privacy had been interfered
with by the ACT Department of Justice and Community Safety
(JACS) when personal information concerning his work performance
and former employment was disclosed to the Ombudsman's
office in the course of an investigation of a complaint
made to that office by Mr Rummery. The Privacy Commissioner
held that the personal information disclosed was not relevant
to the complaint being investigated and said that JACS
should apologise. However, the Privacy Commissioner decided
that Mr Rummery was not entitled to any financial compensation.

The AAT noted that the Privacy Act specifically provides
that compensable loss or damage includes injury to the
complainant's feelings and humiliation. The AAT considered
the approach to compensation awards under the Commonwealth
Sex Discrimination Act 1984 and in other jurisdictions
and decided in the circumstances that an award
of $8,000 should be made. In reaching its decision, the
AAT set out the principles that it considered should apply
in determining whether financial compensation is appropriate
in a particular case:

  • where a complaint
    is substantiated and loss or damage is suffered, the
    legislation contemplates some form of redress
    in the ordinary course;
  • awards should
    be restrained but not minimal;
  • in
    measuring compensation the principles of damages applied
    in tort law will assist, although the ultimate guide
    is the words of the statute;
  • in an appropriate
    case, aggravated damages may be awarded;
  • compensation should be assessed having regard to the
    complainant's
    reaction and not to the perceived reaction of the majority
    of the community or of a reasonable person in similar
    circumstances.

The
claim that disclosure of the personal information was necessary
to show that Mr Rummery's complaint to
the Ombudsman was frivolous and vexatious, was rejected
by the Privacy Commissioner and quoted with approval by
the Tribunal. The Tribunal also noted (without taking it
into account) that JACS had persisted during evidence before
the Tribunal in maintaining that Mr Rummery's conduct
was not bona fide and commented that JACS had incurred
considerable expense (including a QC) in maintaining that
position, a position that was always doomed to failure.
The Tribunal was critical of the Department's apology
saying it was as limited as it could be and would not
convey any real sense of regret to a reasonable reader.

Agencies
should take close note of this decision particularly:

  • the large sum of damages awarded (Privacy Commissioner
    awards for hurt feelings have been mostly in
    the range of $500 to $1000);
  • the amount of compensation
    is to reflect the perception and reaction of the complaint
    to the breach and not the
    notional reaction of the reasonable person; and
  • apologies need to be more than mere platitudes as
    in another case this could influence the quantum of damages
    awarded.

Text of the decision is available at:
http://www.austlii.edu.au/au/cases/cth/aat/2004/1221.html

For
further information please contact:

Justin Hyland
Senior Lawyer
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.