In addition to its jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 to review a determination of the Information Commissioner, the Court has jurisdiction to enforce a determination of the Commissioner.
The key features of the Court's jurisdiction under the Privacy Act 1988 are:
- If there is no relevant privacy code in place, the Australian Privacy Principles apply.
- If you are not satisfied with the way in which an organisation or agency is handling your personal information, you should take up your concern with the relevant organisation in the first instance.
- If the organisation or agency does not respond to your complaint or you are not happy with their response, you can lodge a complaint with the Information Commissioner.
- The emphasis is intended to be on conciliation of complaints, but where this is not possible, the Commissioner must make a determination on the complaint.
- Determinations may be reviewed under the Administrative Decisions (Judicial Review) Act 1977.
- Determinations may be enforced by application to the Court (or the Federal Court).
- Enforcement proceedings may be instituted by a complainant or the Commissioner.
- Proceedings are by way of hearing de novo but evidence received by the Commissioner is available to the Court, as are the Commissioner’s reasons.
- The Commissioner can issue a certificate which is prima facie evidence of a breach of the relevant privacy code or Australian Privacy Principles.
- If an interference with privacy is established, the Court can make such orders as it sees fit, including a declaration of right or an injunction, for which there is to be no undertaking as to damages.
The Court also has jurisdiction in relation to the statutory tort for serious invasions of privacy (see Schedule 2 to the Privacy Act).
I want to enforce a privacy determination
To enforce a determination, you will need to file:
- an Originating Application – General federal law, and
- an Affidavit - General federal law and migration or statement of claim or points of claim (see subrule 8 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025), and
- a copy of the Commissioner’s determination,
You may also file:
- any written reasons for the determination from the Commissioner, and
- a copy of any document that was before the Commissioner.
What do I have to pay to start a proceeding?
You will need to pay a filing fee to the Court when you file the application.
In some circumstances, you may be exempted from paying court fees, for example, if you are a concession holder. You will need to apply for the exemption, using the Application for Exemption from Paying Court Fees – General. You can also apply for an exemption if paying court fees would cause you financial hardship, using the Application for exemption from paying Court fees or reduction - financial hardship (general federal law).
For the current fees and more information about applying for a fee exemption see Fees.
The filing fee is separate from legal fees you may need to pay your lawyer if you decide to use one for your matter.
Filing with the Court
Wherever possible, you must file court documents commencing or relevant to an existing matter online using eLodgment. You may also eLodge documents regarding a proceeding including draft orders, consent orders, and case management correspondence. See the Federal Court website for information on how to use eLodgment
If it is not possible to file using eLodgment, you may be able to file your documents in person, by mail, or in certain circumstances by fax or email. Contact the Court if you are not sure how to file the documents.
How do I notify the respondent?
After filing your application, you must 'serve' the application and each document you have filed on each other party. That means you must make sure that the other party receives the filed documents. At the hearing, the judicial officer will often ask for evidence that you have served the documents.
You can serve the documents by delivering them in person.
If the respondent is an organisation, corporation or partnership you may be able to send the documents by registered or express post to their registered office (see Division 10.1 of the General Federal Law Rules).
If you cannot serve the documents in person or the documents sent by post cannot be delivered, you can apply to the Court for an order that you may serve the documents in a different way, for example, by email. This is known as ‘substituted service’. You make that application by filing an Interlocutory Application with an accompanying Affidavit – General federal law and migration proceedings explaining why you want to serve the application in a different way. The Court will then consider whether to make an order for substituted service. If an order is made, you will need to serve the documents as set out in the order.
After the documents have been served, you will need to complete an Affidavit of service, which you should file with the Court (using eLodgment). The affidavit of service must be sworn or affirmed in front of a person authorised by law to witness the swearing of affidavits, such as a lawyer or Justice of the Peace. You should have a copy of the filed affidavit of service with you at the court hearing.
Response
Within 28 days after you serve the application, the respondent(s) will need to file and serve:
- a Response
- an Affidavit - General federal law and migration (if an affidavit was filed with the application) or a defence or points of defence (if a statement of claim or points of claim was filed with the application).
Discontinuance
An applicant can choose to discontinue the application at any time before the first court date or, if the proceeding is continuing on pleadings, any time before the pleadings have closed, by filing a Notice of discontinuance with the Court.
You will need the other party’s consent or the Court’s permission if you want to file a Notice of discontinuance if the first court date has occurred or pleadings have closed (see Rule 23.02 of the General Federal Law Rules).
