Can I go to the Tribunal if the Commissioner has not investigated my complaint?

If the Commissioner has decided under section 73(1)(a) not to investigate your complaint, you cannot commence proceedings in the Human Rights Review Tribunal. There are many reasons we won’t investigate, including where you haven’t contacted the organisation first, the issue hasn’t caused you harm(external link), or we believe that an investigation is unnecessary (for example, where the agency has already taken appropriate steps to resolve the issue). If we decide not to investigate, we will give you the reasons for that decision. See Making a complaint to the Privacy Commissioner(external link), and section 74 of the Privacy Act(external link), for more information about our complaints process and the reasons why we may decide not to investigate a complaint.

The only situation in which you can commence proceedings without the Commissioner investigating your complaint, is where we have tried to help you resolve it under section 77 of the Privacy Act(external link). We will advise you of your right to bring proceedings, and the six-month time limit that applies, when we close our file.

If you want further information, this decision (Dunstan Rejection of Statement of Claim [2023] NZHRRT 34(external link) - opens to PDF, 184KB) has a useful explanation of the legal framework, including the procedure that the Commissioner must follow when a complaint is received, and when individuals may commence proceedings in the Tribunal under section 98 of the Act(external link).

In the August 2024 case Lovatt v Health New Zealand (opens to PDF, 174KB)(external link) the Human Rights Review Tribunal’s (HRRT) decision was upheld, confirming that the HRRT cannot consider matters that the Office of the Privacy Commissioner has declined to investigate.

Updated November 2025