VID829/2023 – Kant – Submissions (23 April 2024)

Details of Filing

Document Lodged: Submissions
Court of Filing FEDERAL COURT OF AUSTRALIA (FCA)
Date of Lodgment: 23/04/2024 4:15:30 PM AEST
Date Accepted for Filing: 23/04/2024 4:26:10 PM AEST
File Number: VID829/2023
File Title: JAN MAREK KANT v THE AUSTRALIAN INFORMATION COMMISSIONER
Registry: VICTORIA REGISTRY – FEDERAL COURT OF AUSTRALIA

No. VID829/2023

Federal Court of Australia
District Registry: Victoria
Division: General Division

JAN MAREK KANT
Applicant

THE AUSTRALIAN INFORMATION COMMISSIONER
Respondent

Date: 23 April 2024

Applicant’s Submissions in Reply

BACKGROUND

  1. By letter to the Respondent sent 22 Aug 2023, the Applicant requested an investigation “under 12B(2) of the Privacy Act 1988”. The Respondent declined to investigate on the ground that 7(1A)(a) Privacy Act 1988 states that any act or practice done by the Australian Security Intelligence Organisation (ASIO) is excluded from coverage of Privacy Act 1988.
  2. On the ground2 that disclosure of personal information to ASIO is not the issue of the 22 Aug 2023 request, the Applicant sought the Respondent reconsider the decision to not investigate.
  3. By way of letter dated 21 Sep 2023, the Respondent confirmed his decision to not investigate the matter on the ground that 7(1A)(a) Privacy Act 1988 states that any act or practice done by ASIO is excluded from coverage of Privacy Act 1988.
  4. The factual background in the Respondent ’s 12 Apr 2024 Outline of Submissions document [3] has material omission s and errors.
  5. The grounds of review [4] are those in the Applicant’s 19 Sep 2023 email to the Respondent.

ERRORS

  1. Item 2 in the 27 Mar 2024 ORDER of Justice Snaden required the Respondent to file and serve (complete) submissions by 4pm on 16 Apr 2024. The Respondent erred in producing a “ Respondent’s Outline of Submissions” ; the content of the document (filed as Submissions ) must be treated as his complete submissions for the proceeding.
  2. The Respondent does not dispute that authorities in this proceeding must be limited to those at legislation.gov.au (1)6. Each reference to case law and explanatory memoranda must be disregarded. Each reference to ICCPR must be read as references to s.3 Schedule 2 Australian Human Rights Commission Act 1986.
  3. It is not in dispute that distinction between the Australian Information Commissioner and OAIC is arbitrary (7), nor that the Australian Information Commissioner is party to this proceeding is his capacity as officer of the Commonwealth (4). The Respondent is genderless [30.2, 30.4, 3 6] and each reference to OAIC [4, 4.1, 4.3, 32.1, footnote 21] or a delegate [1, 2, 14, 16, 17, 30.2] in his submissions must be read as reference to the Respondent himself.
  4. It is not in dispute that only laws in force on 22 Aug 2023 can apply in this proceeding (9). Laws concerning Information Privacy Principles (IPPs) [21, 22, 24] do not apply.
  5. “JMK -11” pp.25-46 refers [footnote 21] refers to a privacy complaint to the Respondent about the “FOI Commissioner”.
  6. The amended originating application isn’t dismissed [38].

NATURAL JUSTICE

  1. Natural justice requires that false materials, if produced to the Applicant by an officer of the Commonwealth, can be relied on by the Applicant in claims he makes against the Commonwealth.
  2. Natural justice requires that officers of the Commonwealth must not rely, in defending claims made by the Applicant or in making claims against him, on false materials produced (first to the Applicant or otherwise) by an officer of the Commonwealth.
  3. The Court may have regard to the content of Knowles v Secretary, Department of Defence [2020] FCA 132897, as if the document were what it purports to be, to the extent it may advance the case of the Applicant [32.1].

ASIO

  1. Item 13 in the Respondent’s submissions [13] misrepresents the Applicant’s contention (10,11).
  2. The suggestion that an entity can be exempt-in-general [14, 24] from operation of Privacy Act 1988 is without basis.
  3. An act or a practice “involves” disclosure of personal information to ASIO [9, 14] “only so far” as it is one or several acts of disclosing personal information to ASIO.
  4. The intention for Privacy Act 1988 to be binding on ASIO appears in s.12B Privacy Act 1988 . Reference “to an act or to a practice ” is reference to conduct of ASIO insofar as that makes Privacy Act 1988 apply also to ASIO or also to the information ASIO holds [15].
  5. Insofar as its operation is inconsistent with operation of Privacy Act 1988 giving effect to ICCPR, 36(1) Privacy Act 1988 is severed [16] by effect of 12B(2)(a) Privacy Act 1988.

ICCPR

  1. 7(2) Privacy Act 1988 gives [10] that, in application of Privacy Act 1988 otherwise than in respect of the APPs (etc.), reference “to an act or to a practice ” is also reference to “an act done” or “a practice engaged in” by an intelligence agency (etc.) if that intention appears; the intention appears in 12B(2) Privacy Act 1988 giving Privacy Act 1988 also the same effect it would have if its if its operation in relation to regulated entities were expressly confined to an operation to give effect to ICCPR [11].
  2. By investigating an infraction (or alleged infraction) upon rights and freedoms recognised in ICCPR, the Respondent acts to “ensure that (a) person whose rights or freedoms (as recognised in ICCPR) are violated shall have an effective remedy ” per Article 2.3 ICCPR [23].
  3. 12B(2) Privacy Act 1988 makes investigating infractions (or alleged infractions) upon rights and freedoms recognised in ICCPR a function [25] of the Information Commissioner.
  4. 27(2) Privacy Act 1988 empowers the Information Commissioner to do all things necessary or convenient to be done for, or in connection with, investigating an infraction (or alleged infraction) upon rights and freedoms recognised in ICCPR [23].
  5. Nothing in ICCPR excludes intelligence agencies from its operation; ASIO is not exempt from operation of Privacy Act 1988 as gives effect to (all of) the ICCPR [7, 9 – 11, 17, 23, 24].
  6. The suggestion [21, 24] that ICCPR might not override exemptions in Privacy Act 1988 is without basis (see item 9 above).
  7. Privacy Act 1988 is seen [24] to apply to:
    a. Directors -General and ASIO employees and agents of the Organisation by effect of the words in 18(4B) Australian Security Intelligence Organisation Act 1979 ; and therefore,
    b. ASIO generally by effect of s.93 Australian Security Intelligence Organisation Act 1979 (44) and 12B(4) Privacy Act 1988.

TORTS

  1. The Respondent admitted (19) the truth of Chapter 2 Criminal Code applying in torts of intentional and reckless mens rea . Attempt to engage in relevant conduct is made sufficient cause for action by effect of s.11.1 Criminal Code.
  2. A suggestion that s.80 Judiciary Act 1903 may not apply in relation to torts as the Applicant submitted (28, 37, 45, 46) is without basis [34, 35].
  3. Items 27 of the Respondent’s submissions misrepresent the Applicant’s grounds (24, 27, 29, 32, 34 – 37, 44, 45) for seeking damages against the Commonwealth [27].

Tortious abuse of process

  1. A person who acts to secure judgment in favour of a counterparty to a proceeding commits abuse of process [30] and breaches a duty to refrain from doing so; if such abuse of process causes a person to suffer loss, it is tortious abuse of process (27, 28).
  2. The Applicant’s claims to damages in tortious abuse of process [29] are not claims in respect of abuses intended to achieve a collateral purpose (24, 27 – 29).
  3. Item 30.4 of the Respondent’s submissions misrepresents [30.4] the Applicant’s contention (24, 27).

Disprivacy

  1. Orders requiring that the Respondent do things as in the 22 Aug 2023 letter would cause procurement of the Applicant’s personal information (including sensitive information); this was intended (10, 11, 24, 27, 36).
  2. “Disprivacy” is an arbitrary term [32.2] used by the Applicant in describing a particular tort which he asserts to exist in common law (1). The Respondent has admitted the truth of the facts of tort of disprivacy in common law (19).
  3. Damages for injury to feelings and exemplary damages [32] may be awarded in disprivacy.
  4. Lawfulness of conduct such as that referred to in item 32.1 of the Respondent’s submissions [32.1, footnote 21] is challenged in submissions concerning serious and repeated interference (31 – 44, 46).
  5. The Applicant relies on s.80 Judiciary Act 1903 (37) and the common law (1, 8, 19, 24, 31 – 46) in Australia (as modified by the Constitution and statute law) in force by effect of Regulatory Powers (Standard Provisions) Act 2014 and Privacy Act 1988 as also extended by ICCPR; authorisation is not required [32.3].
  6. The Applicant does not (24, 32) allege the Respondent uses the proceeding itself [30.3] for obtaining personal information about him.

COSTS

  1. The Applicant in this proceeding is a person of the kind mentioned in s.55N Judiciary Act 1903. Part VIIC Judiciary Act 1903 gives that the Applicant cannot rely on legal professional privilege or other duties of confidence for purposes of this proceeding.
  2. The provisions of laws for compensating people who become involved in proceedings, as ordinarily apply, are insufficient to carry them into effect in proceeding s in which the Commonwealth has a stake and a person of the kind mentioned s.55N Judiciary Act 1903 is involved; the operation of s.80 Judiciary Act 1903 is engaged [34 – 37].

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