34 It is clear from the terms of s 41 of the Privacy Act that the decisions under review are those of "the Commissioner", and of no other person or entity. Section 6 of the Privacy Act states that, for the purposes of that Act, "the Commissioner" is the Information Commissioner within the meaning of the Australian Information Commissioner Act 2010 (Cth) (the AIC Act).
35 The Office of the Australian Information Commissioner was established by s 5(1) of the AIC Act. It consists of "information officers" and the staff mentioned in Pt 3 of the AIC Act: s 5(2) of the AIC Act.
36 The information officers are, respectively: (a) the Information Commissioner; (b) the Freedom of Information Commissioner; and (c) the Privacy Commissioner: s 6 of the AIC Act. The respective functions and powers of the information officers are set out in Div 3 of Pt 2 of the AIC Act.
37 Section 14(1) of the AIC Act provides for the appointment of the Australian Information Commissioner. Importantly, s 3A provides that, in any Act, the Information Commissioner is the person appointed under s 14 of the AIC Act as the Australian Information Commissioner.
38 Therefore, the decision-maker referred to in s 41 of the Privacy Act as "the Commissioner" is the Australian Information Commissioner.
39 The staff of the Office of the Australian Information Commissioner are persons engaged under the Public Service Act 1999 (Cth). Subject to exceptions that are not relevant to the case at hand, s 25 of the AIC Act provides that the Information Commissioner may delegate his or her functions or powers, as the Information Commissioner, to a member of the staff of the Office of the Australian Information Commissioner.
40 The decisions under review purport to have been made under s 41 of the Privacy Act as an exercise of power of the Commissioner. As such, they are decisions apparently made under the authority delegated by s 25 of the AIC Act: see the record of decision annexed to the originating application. This is recognised in the originating application itself, where the applicant pleads that "the officer who made the Decision is a senior officer and is in the capacity of the Commissioner …".
41 In Giddings v Australian Information Commissioner [2017] FCA 677; 156 ALD 601, Tracey J said (at [5]–[7]):
5 In the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), the appropriate respondent to an application for judicial
