Conciliation of Privacy Complaints

The information below explains the conciliation process so that you know what to expect when participating in conciliation as part of the Office of the Privacy Commissioner's complaint handling process.

When the Office of the Privacy Commissioner (the Office) receives a complaint it decides how it will be handled. The best way to handle the complaint may be through conciliation.  Reaching an agreement through conciliation can be an effective and quick way of resolving the complaint for both parties.

What is conciliation?

• Conciliation is a formal, structured discussion between the parties assisted by an Office conciliator. The conciliator is an independent third party who assists the parties to identify issues and discuss them.
  
• The aim of conciliation is to resolve the issues through discussion and negotiation. The conciliator sets any rules for the meeting and keeps things running smoothly. The conciliator does not make a decision on the matter, and cannot compel the parties to reach agreement; this is for the parties to achieve.
  
• Conciliation can involve a face to face meeting where both parties and the conciliator are present. It can also be held by a telephone conference call, or with the conciliator speaking to one party at a time.
  
• Conciliation can also be conducted in writing with the Office writing to the parties.

Conciliation provides:

• The opportunity for the parties to openly discuss the matter and way it might be resolved in a neutral environment with the help of a skilled conciliator.
• The opportunity for parties to actively decide how a complaint is resolved - in conciliation only the parties can decide on the outcome.

When can conciliation occur?

• Conciliation may occur at any stage once an investigation has started.  It may occur without the Office forming a view that an interference with privacy has occurred.  Where appropriate, the Office will encourage parties to participate in conciliation as a means to resolve the matter.  
  
• Conciliation requires a willingness by both parties to resolve the matter.

Why participate in conciliation?

• Conciliation can facilitate prompt and satisfying resolution to conflict allowing each party to hear and understand the reasons for the other's actions.
  
• Conciliation allows the parties to reach agreement on the outcome of the complaint rather than the Office deciding the outcome.
  
• It is less formal than a full Office investigation, and may lead to an earlier conclusion of the matter.
  
• It provides a structured opportunity for the parties to discuss and resolve issues.
  
• Conciliation can remain confidential, allowing the parties to communicate openly about the matter.
  

When might conciliation not be appropriate?

• If the parties refuse to participate, then conciliation cannot occur.
  
• Where the act or practice constitutes an offence and is being considered by a law enforcement agency.
  
• Where the safety of the parties or the conciliator cannot be ensured, for example where threats of violence are made.
  

Who participates in conciliation?

The complainant/s, the respondent/s and the conciliator participate in the conciliation.  Where the Office considers it appropriate, two conciliators may be present.

Parties may bring a support person with them to conciliation. However, parties are not normally represented by advocates or legal practitioners.  If you would like to attend with an advocate or legal practitioner, you should first discuss this with the case officer at the Office who will consider the matter.  A decision would usually be made after consulting the other party.

Conciliation is confidential

Generally speaking, conciliation is most useful when the parties agree to keep the discussions confidential.  This helps the parties to feel comfortable in talking about the matter openly, without fear that the matter will be discussed outside the conciliation process. 

Participants in conciliation will be asked by the conciliator/s to agree not to discuss the issue with anyone unless it is needed for the resolution of the matter.  The Office encourages parties to document any agreements reached by the parties (with the assistance of the conciliator if necessary).  The agreement usually has a clause that says that both parties agree to keep the terms of the agreement confidential.

Outcomes from conciliation

Conciliation gives the complainant an opportunity to explain the impact of the situation they have complained about.  It may also allow a respondent to give a complainant more information about the situation, and to better explain why certain things were done or not done. 

This opportunity may allow the parties to reach a shared understanding, or agreement, about what gave rise to the situation complained about.  The conciliator's role during this discussion is to aid the parties in talking to each other, and to assist in reaching common ground.

Conciliation also offers the parties an opportunity to discuss how they would like to resolve the matter.  An open exchange about the situation may enable the parties to reach agreement on a resolution which might (but not necessarily) include:

• An apology or acknowledgement.
  
• A change to the respondent's practices or procedures.
  
• Taking steps to address the matter, for example providing access to personal information.
  
• Payment of money for expenses, or in recognition of other non-financial loss.
  
• Other non-financial options, for example a complementary subscription to a service.

Where payment of money is being considered, the respondent may ask the complainant to show evidence of the expenses being claimed.  For non-financial loss, the respondent may ask for evidence that the complainant has suffered as a result of any alleged privacy breach, for example by providing a statutory declaration or doctor's letter.

Similarly, the discussion may reveal that the respondent has reasonable procedures or policies in place regarding the handling of personal information.  The complainant may develop a better understanding of the circumstances of their complaint by discussing the matter with the respondent. 

In conciliation the outcome is negotiated by the parties with the assistance of the conciliator.  The conciliator will work with the parties to try to reach an agreement. Agreement is more often reached when the parties are flexible in what they are prepared to offer and accept in order to resolve the complaint.

What happens if an agreement is not reached?

If it is considered appropriate, the Office may decide to conduct further investigation of the complaint.  This may lead to a finding that an interference of privacy has or has not occurred, which may change the willingness of the parties to participate in any further conciliation.

If a respondent has made an offer to the complainant during the conciliation which was not accepted, the Office may consider whether this offer adequately deals with the matter.  If the Office considers that the offer does adequately deal with the matter, the Office may decide to close the complaint.

In some cases, the Office may decide to make a determination in the matter.  A determination is a decision made by the Privacy Commissioner which sets out what the Commissioner considers to be an appropriate resolution to the matter.  This may result in the complaint being dismissed, or the respondent being required to carry out certain actions.  A determination may include a requirement that compensation or expenses be paid for.

These options will usually be explained to the parties by the conciliator as part of their introduction to the conciliation.

For further information about the conciliation process, please call the Privacy Enquiries Line on 1300 363 992.

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