What can I do if OVIC closes my complaint? (Applying to VCAT)

OVIC might close your complaint if:

• They decide not to look into your complaint; or
• They decide conciliation will not work for your complaint; or
• They tried conciliation but it failed.

If OVIC closes your file, you can ask them to send your complaint to the Victorian Civil and Administrative Tribunal (VCAT).

Important: VCAT only accepts personal information privacy complaints from OVIC. This means you cannot apply to VCAT about personal information privacy without going through the OVIC process first.

What is VCAT?

The Victorian Civil and Administrative Tribunal (VCAT) is a Tribunal, which is a bit like a court, but instead of a Magistrate or Judge they have a Tribunal Member. The Tribunal Member can make a decision about whether there was a breach of privacy by Corrections Victoria or the prison, after hearing both sides and reviewing any evidence.

Like court, there are steps that have to happen before you get a final hearing. They are:

1. Asking OVIC to refer your complaint to VCAT
2. Having a directions Hearing at VCAT
3. Doing a mediation or compulsory conference
4. Having a final hearing

Step 1: Asking OVIC to refer your complaint to VCAT

Once you receive a written notice from OVIC to say they are closing your complaint, you have 60 days to ask for a referral to VCAT.

You can ask for a referral to VCAT by contacting OVIC by writing a letter.

People outside prison acting on your behalf can contact OVIC by phone – (03) 8684 7565.

Writing a letter

You can write a letter to the following address:

Office of the Victorian Information Commissioner
PO Box 24274
Melbourne VIC 3001

Mail to OVIC is free of charge.

Important: mail to OVIC is exempt mail. That means prison officers are not allowed to open your letters to or from OVIC, except in very specific circumstances. For more information on Mail, click here.

If you ask OVIC to refer your complaint to VCAT, they will send VCAT:

• A copy of your original complaint and any evidence you provided
• A copy of the Complaint Outline that OVIC writes on your behalf (this is a summary of your complaint)
• Contact details for you and Corrections Victoria or the prison

Remember: you cannot bring up new complaints or issues when you go to VCAT. You can only talk about your complaint to OVIC.

Step 2: Directions Hearing at VCAT

Once VCAT gets your documents, they will make organise a Directions Hearing.

A Directions Hearing is a short hearing at VCAT where a Tribunal Member (like a Magistrate in a criminal case) will decide:

1. A timeline for your case, which includes dates for:
   • When you and Corrections Victoria or the prison must provide any documents or evidence to VCAT
   • A mediation or compulsory conference (see Step 3)
   • The final hearing (see Step 4)
2. How long the final hearing will take (depending on the number of witnesses and how long it will take each side to make their arguments).

You will need to appear at the Directions Hearing. This will be either by phone or video-link.

Step 3: Mediation or Compulsory Conference

In most information privacy cases, VCAT will make an order that there has to be a Mediation or Compulsory Conference before the final hearing. This is to see if the issue can be sorted out without having to go through a final hearing.

Mediation is a private meeting between both sides with a mediator (either a VCAT member or a mediator chosen by VCAT), who will try to help with a discussion to see if the issue can be sorted out without going through a final hearing.

Compulsory Conferences are similar to mediation, but they are always run by VCAT members. VCAT members cannot make a decision about the case at the Conference, but they can give their view on what they think would happen at a hearing if it went ahead. They can hear from both sides at the same time or talk to each side privately.

Important: make sure you come prepared for Mediation or Compulsory Conference.

• Be ready to answer questions about the issue, your side of the story and how you think it can be sorted out.
• Have a copy of any documents or evidence that supports your complaint.

Step 4: Final Hearing

If the issue can’t be sorted out at Mediation or Compulsory Conference, a final hearing will be booked in. VCAT hearings are less formal than criminal court, but you should still expect to:

• Give an oath or affirmation when you give evidence
• Ask questions to witnesses or be asked questions yourself
• Present your own arguments
• Answer when the VCAT member asks you a question

Remember: because it is your application, you will have to prove to VCAT that the prison breached your privacy and caused you harm. The standard of proof in these cases is on the “balance of probabilities” – that means you need to show it is more likely than not that your privacy was breached.

What can happen from a VCAT hearing?

At the end of the evidence and arguments, the VCAT member will either:

• Dismiss all or part of your complaint if they believe there was no breach of your privacy; or
• Decide that there was a breach of your privacy and:
  • Take no further action; or
  • Order the prison to stop or not repeat the behaviour you complained about; or
  • Order the prison to take some action that will address your loss or damage because of the privacy breach; or
  • Order the prison to pay you compensation (money) for your loss or damage.

Source: OVIC website