Document ID: chunk:federal_register_of_legislation:F2016L00360:reg:14:p12
Version: federal_register_of_legislation:F2016L00360
Segment Type: reg
Provision Reference: reg 14 (pt 12/16)
Character Range: 31517–34514

substantiated, make one or more of the declarations specified in paragraph 52(1)(b) of the Privacy Act.
10.2  Upon completing a Commissioner initiated investigation, the Information Commissioner may make a determination that includes one or more of the declarations specified in subsection 52(1A).

  Legislative basis for enforcing determination
10.3  Under section 55A of the Privacy Act, the Information Commissioner may apply to the Federal Court or the Federal Circuit Court for an order to enforce a determination made under section 52 against a person or entity.

  Legislative basis for enforcing determination against an agency
10.4         Under section 62 of the Privacy Act, the Information Commissioner may apply to the Federal Court or the Federal Circuit Court for an order to enforce a determination made under section 52 against an agency.
10.5  The Information Commissioner may only make an application under section 62 if the agency has failed to comply with its obligations under section 58 of the Privacy Act. Section 58 requires an agency that is the respondent to a section 52 determination to refrain from conduct that has been declared to be an interference with privacy, and to perform any act or course of conduct that was declared, in the determination, to be appropriate to redress any loss or damage.

  General approach to making determinations
10.6  The Information Commissioner has a discretion, after investigating a complaint made under section 36 of the Privacy Act, to make a determination under subsection 52(1) of the Privacy Act which either dismisses the complaint or finds that the complaint is substantiated.
10.7  When investigating a complaint relating to the My Health Record system under the Privacy Act, the Information Commissioner must make a reasonable attempt to conciliate the complaint.
 10.8  When deciding whether to make a determination under section 52 of the Privacy Act in response to a complaint under section 36, the Information Commissioner may consider:
           a)      the particular facts of the matter;
           b)     the factors referred to at section 7.1 of these guidelines;
           c)      whether it appears there is a prima facie interference with privacy, the parties are unable to resolve the matter through conciliation and the matter cannot otherwise be finalised;
           d)     whether one or both of the parties has requested that the matter be finalised by way of a determination and the Information Commissioner considers that making a determination would be the appropriate resolution in the particular circumstances;
           e)      whether the issues raised by the complaint are complex and/or systemic
           f)       whether the investigation process has been able to resolve whether an interference with privacy has occurred, and whether it is likely that the determination process would resolve that question.

10.9 The Information Commissioner has a discretion, after an investigation