The Privacy Act is changing – and one significant feature of the changes will be to put a time limit on when complainants can bring a complaint to the Human Rights Review Tribunal.

We’ve highlighted the issue of investigating a complaint about events long in the past in our blog before, and the view of the Tribunal. Complainants and our office need to be aware of how the Tribunal is operating and when a case may not be accepted.

Too long ago

Earlier this year, the Tribunal rejected a complainant’s request for judgement because she waited five years to bring her case to its attention. Our office had earlier declined to investigate her complaint because it involved events that were too far in the past.

Section 74 of the Act says the Privacy Commissioner may decide not to investigate a complaint if “the time that has elapsed between the date on which the subject of the complaint arose and the date on which the complaint was made is such that an investigation of the complaint is no longer practicable or desirable”.

You can read about the case in our blog post. 

The Tribunal decision can be found here. 

Six-month limit - section 98

What the Privacy Act 2020 does is clarify the law on the practical temporal limitations on taking a case to the Tribunal.

Under section 98 of the new Act, an aggrieved individual must commence proceedings in the Tribunal within six months after the Privacy Commissioner has notified the complainant of the result of the complaint investigation.   

Section 98 sets out the main criteria that complainants can rely on when bringing their cases to the Tribunal – and they can do this even if our office declines to investigate or decides not to further investigate a complaint.

But despite widening the criteria for taking complaints to the Tribunal, there are clues as to how the Tribunal might refuse to hear a case. For instance, in 2018, the Tribunal took a dim view of a complainant who had withdrawn his complaint to our office and then filed proceedings with the Tribunal.

Complainant withdrew complaint

Ordinarily, when our office completes an investigation into a complaint, we issue the complainant with the Certificate of Investigation. This certificate gives the complainant an avenue to then take their case to the Tribunal.

In this case, the complainant withdrew his complaint before we were able to make a final view. Our office issued the complainant with the certificate, but it recorded that the Privacy Commissioner, having started an investigation, reached no final view because the complainant had withdrawn his complaint.

In its decision to strike out the case, the Tribunal said: “Any influx of cases taking a short cut will limit the effectiveness of the Tribunal’s processes for those claimants who have proceeded in good faith through the Privacy Act’s mandated consideration of the Privacy Commissioner, followed by a decision in accordance with the requirements of the Act.”

The Tribunal added: “It would also be unfair to those people who engage with the Commissioner’s process were it permissible for other complainants to jump the queue by withdrawing from the statutory filtering mechanism in order to file proceedings with the Tribunal.”

By the simple action of first lodging and then withdrawing a complaint to the Privacy Commissioner, a complainant could bypass “the filtering mechanism” provided by our office.

The Tribunal noted that the time available for hearing cases was a limited resource. The average length of a hearing is about three days and it is not uncommon for complex cases to run for two weeks or more.

Follow the process

Our office tries to resolve complaints using our dispute resolution process. When a case is successfully resolved, it is one fewer case that might be escalated to the Tribunal. In addition, if a complaint is withdrawn before our investigation has run its course, the respondent agency might not learn of the complaint until it was before the Tribunal. This, the Tribunal also noted, would also deprive agencies of the opportunity to engage in meaningful mediation with all its advantages of resolving a complaint at an earlier stage.

For these reasons, the Tribunal decided it did not have jurisdiction to hear and determine if the complainant’s privacy had been interfered with. You can read the decision here.

The two Tribunal examples help us understand the Tribunal’s reasoning in determining how it applies its jurisdictional criteria. A significant factor appears to be whether the issue mattered enough to the complainant to follow it through the process with our office and then to do so in a timely way with the Tribunal.

Image credit: The persistence of memory (edit) by Salvador Dali.