Conciliation under the Privacy and Data Protection Act

Conciliation is an alternative dispute resolution process that aims to assist parties to resolve their dispute outside the formal Court system. Conciliation involves a neutral third party – the conciliator – organising and chairing a discussion between the parties, to aid them to put all their issues on the table and come up with options to resolve their dispute.

The Privacy and Data Protection Act states that if the Commissioner considers it reasonably possible that a complaint may be conciliated successfully, he must make all reasonable endeavours to conciliate the complaint.

Conciliation of a complaint can occur either informally at any stage during the complaint process, or formally when the Commissioner refers the complaint to conciliation for attempted resolution. When a complaint is referred to formal conciliation, both parties will be notified in writing and a conciliation meeting will be scheduled at a time convenient to both.

Anything said or done in the course of conciliation cannot be put before VCAT, any Court or any other legal proceedings, unless all parties to the conciliation agree otherwise.

For information about how we will assist you to resolve a complaint see Conciliation for Complainants or Conciliation for Respondents under the Privacy and Data Protection Act 2014.

The role of the conciliator

The conciliator will try to assist the parties to understand each other’s point of view and to resolve the complaint in a way that is acceptable to both. During the conciliation meeting, the conciliator may bring the parties together for face to face discussions and may also have private discussions with each party.

The conciliator does not take sides and will not advocate for either party. The conciliator is not a judge and does not have the power to make a binding ruling about a complaint at conciliation.

The conciliator can give general information about the application of the Act, examples of outcomes reached at conciliation, or discuss outcomes that have been awarded by the Victorian Civil and Administrative Tribunal (VCAT). The conciliator can also discuss the reality of outcomes proposed during conciliation but cannot give the parties advice about whether they should accept offers proposed by the other side or recommend the most appropriate outcome to the dispute.

What are the benefits of conciliation?

There are advantages to both parties if the complaint can be resolved by conciliation, including:

  • The parties may come to understand each other’s perspective better.
  • The dispute will be resolved quicker than if it goes to a formal hearing.
  • Conciliation is not public and the agreement reached can remain confidential.
  • It is less costly in terms of both time and money than a formal hearing.

It should be noted that a willingness to conciliate does not mean that an organisation is admitting that a breach of the Act has occurred.

What are the possible outcomes of conciliation?

The parties decide how the complaint is to be resolved.

Sometimes it is enough to understand the other party’s position. A complainant might be satisfied with a clear explanation of why an organisation did what it did, and/or the opportunity to be respectfully listened to.

Other outcomes could include:

  • An apology
  • An assurance that the actions complained of will not happen again, to the complainant or others
  • A change in procedures
  • Education of staff on privacy issues
  • Action that will remedy the complainant’s loss
  • Compensation for any damage suffered, including injury to the complainant’s feelings or any hurt or humiliation suffered.
When will conciliation be inappropriate?

The Commissioner may decide that conciliation is not appropriate, either because the complainant or respondent refuse to try and resolve the complaint, or because the subject matter of the complaint is such that the Commissioner does not believe that conciliation is possible.

If this decision is made the Commissioner will notify the complainant in writing and the reasons for the decision.

What if conciliation is unsuccessful?

If attempts to resolve a complaint have failed, the Commissioner may decide that a complaint cannot be resolved by conciliation.

If this decision is made the Commissioner will notify the complainant in writing and the reasons for the decision.

Referral to the Victorian Civil and Administrative Tribunal

If the Commissioner decides not to deal with a complaint, or that conciliation of a complaint would be inappropriate, or where conciliation has been unsuccessful, the complainant may ask the Commissioner to refer the complaint to the Victorian Civil and Administrative Tribunal (VCAT).

This must be done in writing within 60 days of receiving the Commissioner’s decision.

VCAT can hear evidence on oath and make enforceable determinations about complaints. If VCAT upholds a breach of one or more of the Information Privacy Principles, potential remedies include orders requiring the organisation to make an apology, change a procedure, correct or delete personal information, or pay compensation of up to $100,000.

The Commissioner encourages complainants to discuss the matter with the officer who has been dealing with their complaint before asking for the complaint to be referred to VCAT.

If the complainant does not want to have their complaint heard by VCAT the Commissioner may dismiss the complaint after 60 days. Both the complainant and the organisation will be advised in writing when the complaint has been dismissed, and the complainant will be unable to take any further action about the complaint if this occurs.

For information about the procedures if a complaint is referred to VCAT see Guide to the handling of Complaints.