Conciliation at the Office of the Commissioner for Privacy and Data Protection – for Complainants

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What is conciliation?

Conciliation is an alternative dispute resolution process to assist parties resolve disputes without resorting to court action. A neutral third party (a conciliator – a staff member of the Office of the Commissioner for Privacy and Data Protection) helps the parties discuss their issues and assists them to come up with options to resolve the dispute.

Why has my complaint been referred to conciliation?

The Commissioner for Privacy and Data Protection does not have the power to decide what is or is not a breach of the Privacy and Data Protection Act 2014 (the Act).
However, the Commissioner believes that there is a chance the matter may be resolved and has referred the complaint to the Office’s conciliation process so that this can occur.

Is conciliation a court or tribunal?

No – conciliation is not a fact-finding mission and is not about deciding right or wrong or determining legal arguments. The goal of conciliation is to try and resolve your complaint and parties don’t need to agree on everything that has happened to resolve a complaint.

Do I have to participate?

No – conciliation is a voluntary process and you do not have to participate. If you do not want to participate, or have any concerns about the process, please discuss this with the Conciliator assigned to your complaint at the earliest possible stage.

Conciliation inappropriate

If the Commissioner for Privacy and Data Protection does not consider it reasonably possible that a complaint may be conciliated successfully, the Commissioner may declare that conciliation is inappropriate. If this occurs, conciliation will not proceed.

The Commissioner may do this, for example, when:

  • • Parties indicate a refusal to participate in the process,
  • • The relationship between the two parties is so poor that it makes resolution not reasonably possible,
  • • Any party displays unacceptable and/or threatening behaviour, or
  • • Any other information or reason that leads the Commissioner to consider resolution is not reasonably possible.

If the Commissioner declares that conciliation is inappropriate, both parties will be notified. A complainant will still have a right to refer their complaint to the Victorian Civil and Administrative Tribunal (VCAT).

What are the benefits of conciliation?

Conciliation provides you with an opportunity to ‘have your say’ about what has happened in your complaint. It is designed as an opportunity to resolve a complaint without having to go through the time, stress and monetary costs of a hearing at VCAT. Conciliation allows a complaint to be resolved by both parties sitting down and coming up with an agreement that will settle the complaint.

What does the conciliator do?

The conciliator (an Office of the Commissioner for Privacy and Data Protection staff member trained in alternative dispute resolution processes) arranges and chairs a discussion between yourself and the organisation to help each side put its point of view forward and come up with ways to resolve the dispute.
The conciliator is impartial and independent, and cannot force either party to accept outcomes. However, a conciliator can make suggestions on how to resolve the complaint.
The conciliator can discuss how the Act works, how the Commissioner may interpret the Act and how the Victorian Civil and Administrative Tribunal (VCAT) could interpret the matter based on previous complaints.

What things can’t a conciliator do?

The conciliator cannot:

  • • Make you or the organisation do something (or agree to something),
  • • Provide you with legal advice, or
  • • Tell you whether you should or should not accept an offer, or recommend any outcome to the dispute.
What types of conciliation are there?

The conciliator can conduct the conciliation process in two main ways:

  • • Indirect – where negotiation occurs through the conciliator, or
  • • Direct – the two parties meet (either in person or by telephone) together with the conciliator to try and resolve the complaint.

The conciliator will decide on the best way to conduct the conciliation process.

What happens during a conciliation meeting?

Usually, the conciliator will explain the ground rules to each party. A ‘joint session’ then occurs where both parties are given a chance to put their side of the complaint forward and discuss the complaint in a respectful manner.

After the joint session, the conciliator will talk with you and the organisation separately in ‘private sessions’ to discuss ways to resolve the complaint.

The conciliator may then conduct a shuttle negotiation between both parties, or can bring both parties back together again in another joint session so that the parties can discuss ways of resolving the complaint directly.

Conciliation meetings are usually about 3 hours in length.

What can I talk about?

Conciliation is your opportunity to talk to the organisation about your complaint. You may want to put forward your view about what happened.

What is important is that you explain what effect the complaint has had on you. The organisation might know what happened, but not the impact it has had on you.

Can I have a lawyer?

The conciliation process doesn’t require lawyers. You can, however, employ a lawyer, but it would be at your own cost. A legal representative has a similar role to a support person and is generally not permitted to advocate.

However, a lawyer can provide you with legal advice about what you should or should not agree to (which the conciliator cannot). You need to tell the conciliator if you are bringing a lawyer in advance.

Can I bring a support person?

Yes - However, the role of a support person is to support you and they cannot advocate or talk on your behalf, but can prompt you if you forget something you want to talk about.

Are conciliations confidential?

Yes - Section 70 of the Act states that evidence of things said or done in conciliation are not admissible before the tribunal or other legal proceedings, unless the parties agree. This means you can talk openly about the complaint in conciliation without being worried that what you say can be used later (for example, at VCAT). This extends to discussions, letters, telephone calls or things said and done in a meeting.

Also, conversations you have with the conciliator directly are confidential. The conciliator will only disclose information to the other party with your permission.

The conciliator may take notes in the meeting, but the notes are simply for recording the discussion and outcome of the meeting and for the conciliator to prepare a written agreement (if successful). Once conciliation is finalised, the notes are immediately destroyed by the conciliator and are not accessible.

Also, if an agreement is reached, the parties can decide whether they want to make the agreement reached confidential.

Finally, the Commissioner encourages both parties to keep matters discussed in conciliation confidential. This means you should avoid discussing what happened during conciliation with anyone else.

What should I do before a conciliation meeting?

You may want to:

  • • Think about what you want to say to the organisation;
  • • Bring any documents that you think might be relevant to show the organisation; and
  • • Start thinking about things that you want the organisation to do to resolve your complaint.
Common outcomes sought in conciliation

Each complaint is different, and every outcome is dependent on both parties being willing to agree on a way to resolve the complaint.

However, commonly sought outcomes include:

  • • An explanation of what occurred
  • • An apology
  • • A change of procedures
  • • Education of staff on privacy issues
  • • Action remedying loss/damage suffered, and
  • • Compensation for loss/damage suffered (including injury to feelings or humiliation suffered) as a result of the alleged privacy breach.
What if there is no agreement on the day?

If the conciliator believes that it is possible the parties may reach agreement, he or she can adjourn the conciliation to continue the process through the conciliator (indirectly), or have another meeting.

Alternatively, if the conciliator considers that the process is unlikely to resolve the complaint, the conciliator speaks to the Commissioner to have the process declared as ‘failed’.

What happens when an agreement is reached?

If an agreement is reached, the complaint ends and the matter cannot be referred to VCAT.

Either party can request the agreement be put in writing (within 30 days after agreement). If requested, this will generally be prepared by the Conciliator and sent to both parties for signature. The Commissioner certifies the agreement and provides a certified copy to each party. Any party can seek to have the agreement registered at VCAT. If registered, the agreement becomes an order of VCAT.

What happens if an agreement cannot be reached?

If the parties cannot reach an agreement through conciliation, the Commissioner will notify both parties in writing that conciliation has failed.

A complainant has 60 days from receiving that notice to request (in writing) a referral of the complaint to VCAT for hearing.
The Office for the Commissioner for Privacy and Data Protection will generally have no involvement after referral of a complaint to VCAT and cannot assist anyone in preparation of legal

documents before VCAT. [1]

Complainants from non-English speaking backgrounds

As conciliation is an opportunity for both parties to discuss what has occurred and how to resolve a matter, it is important that you understand what is discussed and feel confident communicating during the process. Please tell your conciliator if you have difficulty communicating in English or prefer to speak in a language other than English. The Office of the Commissioner for Privacy and Data Protection will arrange an interpreter when needed. There is no cost for an interpreter. If required, interpreters are required to maintain confidentiality at all times.

Complainants with disabilities or impairments

If you have a disability or impairment of any type and feel that your participation in the conciliation process may be affected, please contact your conciliator as soon as possible to discuss this.

Under the Equal Opportunity Act 2010, the Office of the Commissioner for Privacy and Data Protection will make reasonable adjustments to ensure the process can be conducted in a way that is fair and reasonable for all parties.

Questions?

If you have any questions about the conciliation process, please contact the conciliator assigned to your complaint. Their contact details will be on the letter from the Commissioner for Privacy and Data Protection referring your complaint to conciliation.

Contact

Office of the Commissioner for Privacy and Data Protection

PO Box 24014

Melbourne Victoria 3001 Australia

Telephone: 1300 666 444 (local call)

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Web: www.cpdp.vic.gov.au

 

 

1 For more information about the handling of privacy complaints by VCAT, see www.vcat.vic.gov.au

 

Publication date: Feb 2016

 

Please note that the contents of this information sheet are for general information purposes only, and should not be relied upon as legal advice. CPDP does not guarantee or accept legal liability whatsoever arising from, or connected to the accuracy and reliability of the contents of this document. We encourage your organisation to obtain independent legal advice as necessary.