Victorian Consolidated Legislation

Information Privacy Act 2000 - SECT 29

Circumstances in which Privacy Commissioner may decline to entertain complaint

29. Circumstances in which Privacy Commissioner may decline to entertain
complaint



(1) The Privacy Commissioner may decline to entertain a complaint made under
section 25(1) by notifying the complainant and the respondent in writing to
that effect within 90 days after the day on which the complaint was lodged if
the Privacy Commissioner considers that-

   (a)  the act or practice about which the complaint has been made is not an
        interference with the privacy of an individual; or

   (b)  the act or practice is subject to an applicable code of practice and
        all appropriate mechanisms for seeking redress available under that
        code have not been exhausted; or

   (c)  although a complaint has been made to the Privacy Commissioner about
        the act or practice, the complainant has not complained to the
        respondent; or

   (d)  the complaint to the Privacy Commissioner was made more than 45 days
        after the complainant became aware of the act or practice; or

   (e)  the complaint is frivolous, vexatious, misconceived or lacking in
        substance; or





   (f)  the act or practice is the subject of an application under another
        enactment and the subject matter of the complaint has been, or is
        being, dealt with adequately under that enactment; or

   (g)  the act or practice could be made the subject of an application under
        another enactment for a more appropriate remedy; or

   (h)  the complainant has complained to the respondent about the act or
        practice and either-

   (i)  the respondent has dealt, or is dealing, adequately with the
        complaint; or

   (ii) the respondent has not yet had an adequate opportunity to deal with
        the complaint; or

        (i)    the complaint was made under section 27, on behalf of a child
               or a person with an impairment, by an individual who has an
               insufficient interest in the subject matter of the complaint.

(2) A notice under subsection (1) must state that the complainant, by notice
in writing given to the Privacy Commissioner, may require the Privacy
Commissioner to refer the complaint to the Tribunal for hearing under Division
5.

(3) If the act or practice could be made the subject of an application under-

   (a)  the Privacy Act 1988 of the Commonwealth; or

   (aa) the Disability Act 2006; or





   (b)  the Ombudsman Act 1973-

the Privacy Commissioner may refer the complaint to the Federal Privacy
Commissioner, the Disability Services Commissioner or the Ombudsman, as the
case may be, and notify the complainant and the respondent in writing of the
referral.

(4) Before declining to entertain a complaint, the Privacy Commissioner may,
by notice in writing, invite any person-

   (a)  to attend before the Privacy Commissioner, or an employee in the
        office of the Privacy Commissioner, for the purpose of discussing the
        subject matter of the complaint; or

   (b)  to produce any documents specified in the notice.

(5) Within 60 days after receiving the Privacy Commissioner's notice declining
to entertain a complaint, the complainant, by notice in writing given to the
Privacy Commissioner, may require him or her to refer the complaint to the
Tribunal for hearing under Division 5.

(6) The Privacy Commissioner must comply with a notice under subsection (5).

(7) If the complainant does not notify the Privacy Commissioner under
subsection (5), the Privacy Commissioner may dismiss the complaint.

(8) As soon as possible after a dismissal under subsection (7), the Privacy
Commissioner must, by written notice, notify the complainant and the
respondent of the dismissal.

(9) A complainant may take no further action under this Act in relation to the
subject matter of a complaint dismissed under this section.