Case Citation:Q v Real Estate Agent [2004] PrivCmrA 6

Subject Heading: Improper collection of personal information from a third party / declined to investigate on the basis that the complaint was the subject of an application under another law and the subject-matter of the complaint was being dealt with adequately under that law.

Law:National Privacy Principle 1.4; National Privacy Principle 1.5; section 41(1)(e) of the Privacy Act 1988 (Cth)

Facts: Three individuals of the same sex were living in a rented flat managed by a real estate agent. The lease was jointly in the name of two of the occupants. Two of the individuals (one of whom was a lessee) were in a relationship. The lease permitted only two individuals to occupy the premises and the landlord's consent was required if anyone else wished to reside there. The estate agent issued the lessees with breach notices and proposed to increase the rent.

The complainants alleged that the real estate agent improperly acquired personal information about their living arrangements and about their sexuality from a third party rather than directly from them. The complainants also lodged complaints with the State equal opportunity authority (State authority) alleging discrimination on the basis of their living arrangements and sexual orientation.

Issues: National Privacy Principle 1.4 states that if it is reasonable and practicable to do so, an organisation must collect personal information about an individual only from that individual.

National Privacy Principle 1.5 states that if an organisation collects personal information about an individual from someone else, it must take reasonable steps to ensure that the individual is, or has been made, aware of the matters listed in subclause 1.3 except to the extent that making the individual aware of the matters would pose a serious threat to the life or health of any individual.

National Privacy Principle 1.3 lists the matters which an organisation must make the individual aware at or before the time of collection of personal information (or, if that is not practicable, as soon as practicable after collection).

Outcome: The Privacy Commissioner has a discretion under section 41(1)(e) of the Act to decline to investigate a complaint where he, or she, is of the view that the complaint is the subject of an application under another State (Commonwealth or Territory) law and the subject-matter of the complaint has been, or is being, dealt with adequately under that law.

In this case, the individuals complained to the State authority about direct discrimination by the real estate agency on the basis of their living arrangements and sexual orientation. The complaint was being investigated by the State authority. For this reason the Commissioner decided, under section 41(1)(e) of the Act, that he would not investigate the complaint as the matter was the subject of an application under the State equal opportunity law and the matter was being dealt adequately with under that law.

Further, the Commissioner noted that the subject matter of the complaint was principally about discrimination and that the privacy issues raised about collection of information from a third party was peripheral to the central issue. The Commissioner was willing to consider opening an investigation into the privacy aspect of the complaint if the complainants were dissatisfied with the State authority's investigation.

OFFICE OF THE PRIVACY COMMISSIONER June 2004