Commonwealth Consolidated Acts

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PRIVACY ACT 1988 - SECT 43

Conduct of investigations

             (1)  Before commencing an investigation of a matter to which a complaint relates, the Commissioner shall inform the respondent that the matter is to be investigated.

       (1AA)  Before commencing an investigation of an act or practice of a person or entity under subsection 40(2), the Commissioner must inform the person or entity that the act or practice is to be investigated.

          (1A)  Before starting to investigate an act done, or practice engaged in, by a contracted service provider for the purpose of providing (directly or indirectly) a service to an agency under a Commonwealth contract, the Commissioner must also inform the agency that the act or practice is to be investigated.

Note:          See subsection 6(9) about provision of services to an agency.

             (2)  An investigation under this Division shall be conducted in such manner as the Commissioner thinks fit.

             (3)  The Commissioner may, for the purposes of an investigation, obtain information from such persons, and make such inquiries, as he or she thinks fit.

             (4)  The Commissioner may make a determination under section 52 in relation to an investigation under this Division without holding a hearing, if:

                     (a)  it appears to the Commissioner that the matter to which the investigation relates can be adequately determined in the absence of:

                              (i)  in the case of an investigation under subsection 40(1)--the complainant and respondent; or

                             (ii)  otherwise--the person or entity that engaged in the act or practice that is being investigated; and

                     (b)  the Commissioner is satisfied that there are no unusual circumstances that would warrant the Commissioner holding a hearing; and

                     (c)  an application for a hearing has not been made under section 43A.

             (7)  Where, in connection with an investigation of a matter under this Division, the Commissioner proposes to hold a hearing, or proposes to make a requirement of a person under section 44, the Commissioner shall, if he or she has not previously informed the responsible Minister (if any) that the matter is being investigated, inform that Minister accordingly.

             (8)  The Commissioner may, either before or after the completion of an investigation under this Division, discuss any matter that is relevant to the investigation with a Minister concerned with the matter.

          (8A)  Subsection (8) does not allow the Commissioner to discuss a matter relevant to an investigation of a breach of the Australian Privacy Principles or a registered APP code with a Minister, unless the investigation is of an act done, or practice engaged in:

                     (a)  by a contracted service provider for a Commonwealth contract; and

                     (b)  for the purpose of providing a service to an agency to meet (directly or indirectly) an obligation under the contract.

             (9)  Where the Commissioner forms the opinion, either before or after completing an investigation under this Division, that there is evidence that an officer of an agency has been guilty of a breach of duty or of misconduct and that the evidence is, in all the circumstances, of sufficient force to justify the Commissioner doing so, the Commissioner shall bring the evidence to the notice of:

                     (a)  an appropriate officer of an agency; or

                     (b)  if the Commissioner thinks that there is no officer of an agency to whose notice the evidence may appropriately be drawn--an appropriate Minister.



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