Lost the plot

“The development of distorted positions is to be avoided.”^[1]

The Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal has lost the plot. It’s applying case law principles that reverse privacy law as Parliament wrote it and denying that it has the jurisdiction to do its job.

The principles are that an application for an internal review under s 53 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act): 1) must convey that a statutory right is being invoked, and 2) is a precondition to the Tribunal’s jurisdiction.

Genesis of principles

The principles can be traced back to PC v University of New South Wales [2005] NSWADT 157 (8 July 2005) and PC v University of New South Wales (GD) [2005] NSWADTAP 72 (20 December 2005).

Firmly entrenched

The Tribunal has applied the principles consistently.

DHU v Commissioner of Police, NSW Police Service 

PC v University of New South Wales

Background

PC was a senior academic who had been employed by the University.^[2] She wrote to the Vice Chancellor on 28 November 2004 about conduct that included the 8 November 2004 disclosure of private and confidential information from her employment file.^[3]

PC in the Tribunal

PC, I presume, was not satisfied with the University’s response because she applied to the Administrative Decisions Tribunal (which later became the Civil and Administrative Tribunal) for a review of the University’s conduct. PC sought access to her information, a public apology and compensation.^[4]

The University asked the Tribunal to dismiss PC’s application for want of jurisdiction because (I infer) it did not accept that PC’s letter was an application for internal review under s 53 of the PPIP Act.^[5]

PC’s case

PC said she had, in fact, requested an internal review but the University had failed to complete a review in time, which entitled her to apply to the Tribunal.^[6]

PC’s assertion that she had applied for an internal review was perhaps based on the plain language of s 53 which says:

A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct … An application for such a review must: (a) be in writing, and (b) be addressed to the public sector agency concerned, and (c) specify an address in Australia to which a notice under subsection (8) may be sent, and (d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application … ^[7]

The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for an administrative review of the conduct concerned.^[8]

(Plain language means clear intelligible English. It enables users to understand legislation with a minimum of effort, which makes the law more accessible.^[9])

Tribunal’s decision

““It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”.”^[10]

The Tribunal said s 53 of the PPIP Act contains the precondition that the Act sets for making applications to the Tribunal; the precondition requires that the applicant first give the agency an opportunity to respond to the matters of concern;^[11] and the question was did PC’s letter constitute an application for internal review for the purposes of s 53.^[12]

The Tribunal said the purpose of s 53 was to encourage the resolution of disputes of this kind at local level^[13] and:

• A letter that does not mention the Act, or mention information protection principles, or seek formal remedies, may never be seen by the agency as an application that fits under s 53”;^[14]
• It would expect an applicant to intend their letter to be an application for internal review; ^[15]
• It’s not enough for a letter to express a grievance and request a response;^[16]
• It could not conclude that PC’s letter was a trigger letter;^[17]
• That the precondition was not satisfied and the Tribunal had no choice but to dismiss the application.^[18]

No choice!

Of course the Tribunal had a choice. It could have chosen to read s 53’s plain language in the context of:

• S 53’s actual purpose — to entitle persons who are aggrieved at conduct to a review of the conduct (s 53(1);
• The PPIP Acts purpose;
• Other PPIP Acts provisions; and,
•  Relevant provisions of the Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act),

and said something along the lines of:

The PPIP Act was developed to protect personal information and the privacy rights of individuals.^[19]

It requires public agencies to know about and comply with its provisions, including its internal review provisions (s 21 and s 33).

S 53 expressly entitles a person who is aggrieved at conduct to a review of the conduct (s 53(1)) and imposes on the agency a duty to undertake the review (s 53(2)).

The statutory trigger is a written communication addressed to the agency concerned that specifies an address in Australia for the service of a notice under subsection (8) and which is lodged at an office of the agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application (s 53(3)).

PC’s letter to the Vice Chancellor complied to the letter with s 53 (3); it was an application for an internal review for the purpose of s 53.

The University had a duty to undertake a review of the conduct and notify PC of its findings, the actions proposed to be taken, and her right to have the findings and actions reviewed by the Tribunal (s 53(8)).

PC was entitled to apply to the Tribunal for a review of the conduct when the University did not complete the review within 60 days of its receipt of her application (S 53 (6)).

The University’s dismissal application is dismissed.

The Tribunal has the jurisdiction to review the conduct the subject of PC’s application for internal review and will hear the parties on whether to remit the reviewable decision^[20] to the University for further consideration^[21] consistent with the Tribunal’s duty to ensure that the parties have the fullest opportunity practicable to be heard in the proceedings^[22].

But it didn’t

The Tribunal started with the untested assumption that an internal review application is a precondition to the Tribunal’s jurisdiction then it reversed the onus that the PPIP Act placed on the University to know about and comply with its PPIP Act obligations, and required PC to know about the PPIP Act and cite it to the University.

On top of that, the Tribunal effectively relieved public agencies of their duty to undertake a review of conduct in circumstances where the person (the review applicant) appears to be unaware of their statutory right to a review.

Preferred construction

PC’s implied construction of s 53, that an internal review application is a written communication such as her letter, was both open and preferred because it promoted both the purpose of the PPIP Act and ADT Act’s object, “to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales (s 3(g)).

The Tribunal was “required to undertake the exercise of statutory construction with a view to promoting the purpose or object underlying the PPIP Act and the HRIP Act rather than construing the Acts in a manner which would not promote that purpose or object^[23].” Its construction of s 53, however, reversed the law. Its construction permits public agencies to be wilfully ignorant of their statutory privacy obligations and encourages agencies to exploit persons who are unaware of their privacy rights, which does not promote the protection of personal information and the privacy rights of individuals.

But the Appeal Panel upheld it.

PC in the Appeal Panel

“The task of statutory construction must begin with a consideration of the text itself … The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”^[24]

The Appeal Panel said the primary issue was whether the Tribunal had identified the correct question of law, namely, that compliance with s 53 was a necessary pre-condition to trigger the jurisdiction of the Tribunal; and whether PC’s letter failed to meet s 53’s requirements, and thus, there being no compliance with section 53, the Tribunal had no jurisdiction to hear and determine her application.^[25]

The reasons say that PC raised issues of statutory construction and procedural fairness, and alleged that the Tribunal had failed to consider all the evidence but they don’t say what PC said about the issues except that PC said “an internal review is not mandatory”.[26]

The Appeal Panel said “the internal review regime contained in section 53 Administrative Decisions Act 1997, is specifically excluded from the Privacy and Personal Information Protection Act 1998 by s. 52(4) …”^[27]  (Perhaps PC thought, as I do, that a person was not prevented from making an application to the Tribunal if the Tribunal was satisfied that it was necessary in order to protect the person’s interests.^[28])

Curious citation

Then the Appeal Panel cited Y v Director General, Department of Education & Training [2001] NSWADT 149 as holding that an internal review was a pre-requisite to ground an application for review in the Tribunal”,^[29] and said it was satisfied that an application for internal review was required before a right of review in the Tribunal arose.^[30]

Which is perplexing because the Tribunal in Y v Director General, Department of Education & Training did not decide, let alone hold, that an internal review was a precondition.

Review jurisdiction

The Appeal Panel said it was satisfied that the Tribunal’s finding that PC’s letter did not constitute an application for internal review was reasonably open, and the finding that the pre-conditions for a review of an internal decision had not been met, was correct in law.[31]

(However, the PPIP Act conferred on the Tribunal the jurisdiction to review the conduct the subject of an application for internal review (s 55 (1)), and the findings of the review, and the action proposed to be taken by the agency (s 53 (8) rather than the jurisdiction for the review of an internal decision.)

Sad day for privacy rights

The Appeal Panel (without construing s 53) said the Tribunal identified the correct test and:

• In order to constitute an application for internal review, the document or documents relied upon by the applicant, must upon their face, reasonably convey to the respondent agency, that an application for internal review is sought.^[32]
• PC’s letter, cannot, on its face, reasonably be interpreted as an application for internal review.^[33]
• There is no power in the Tribunal to dispense with the requirement for an application for internal review, pursuant to section 53 of the Privacy and Personal Information Protection Act 1998.^[34]
• If the pre-requisite to trigger the jurisdiction of the Tribunal is absent, the Tribunal has no jurisdiction to entertain the appellant’s application for review, there being no reviewable decision, nor a failure on the part of the respondent to respond to a request for an internal review. ^[35]
• The Tribunal had not made an error of law.^[36]
• The case involved special circumstances and PC should be ordered to pay the University’s costs.^[37]

(Which PC was.)^[38]

Narcissistic review culture

The tendency “to ignore legislation and instead to analyse legal problems by reference to judicial exposition … should be resisted. Not occasionally or selectively.  Always.”^[39]

Nowadays cunning agencies ignore complaints about their handling of personal information if the person seems unaware of their rights. They feign ignorance in the Tribunal, the principles are applied, the agency gets away with it, and the person gets screwed.

So instead of fostering an atmosphere in which administrative review by the Tribunal is viewed positively as a means of enhancing the delivery of services and programs, and instead of promoting and effecting compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales, which are objects of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) (formerly the ADT Act) the Tribunal’s administrative review culture is accepting of the exploitation of persons by public agencies who have a wrong sense of entitlement and no empathy.

DHU v Commissioner of Police, NSW Police Force

“We must insist as a minimum condition upon the application of the rule of law to all aspects of the activities of police …”^[40]

In DHU v Commissioner of Police^[41] it was three entities from the NSW Department of Justice cluster, the Police Force, the Crown Solicitors Office and the Tribunal, who advocated for and accepted the application of the principles from PC.

Background

When the NSW Police Force broke a couple of laws and disclosed information about DHU’s spent conviction to his employer DHU lost his job.^[42]

DHU must, I think, have had faith in the integrity of the NSW Police Force’s complaints system because he wrote and asked the Police for a formal response.[43]

NSW Police Force ignored DHU^[44] until he applied to the Tribunal.

In the Tribunal

DHU applied to the Tribunal for an administrative review of the Police’s conduct in releasing spent convictions that were not disclosable, causing him to lose his job.^[45]

The Police applied for DHU’s application to be dismissed saying the Tribunal did not have the jurisdiction to review its conduct because DHU had not made an application for internal review under section 53 prior to commencement of proceedings”^[46] and, an internal review application was a prerequisite for the Tribunal’s review power.

Police’s case

The Police:

• Said DHU’s emails “did not reasonably convey to the agency that an internal review was sought” and consequently DHU had not applied for an internal review, which, it said, was a prerequisite for the Tribunal’s review power.[47]
• Cited several cases including PC v University of New South Wales (GD) [2005] NSWADTAP 72, PC v University of New South Wales [2005] NSWADT 157, and Y v Director-General, Department of Education [2001] NSWADT 149.[48]
• Said the emails did not indicate that DHU sought an internal review under section 53 of the PPIP Act and the wider context didn’t support the proposition that it should have construed the emails as an application for internal review.[49]

DHU’s case

Through his counsel DHU said:

• A member of the public is not obliged [by s 53] to identify their complaint as an application for internal review under PPIP Act, an applicant is only required to make it clear that the complaint concerns their personal information;
• A public sector agency should know the laws that apply to it, including the PPIP Act;
• DHU wrote and asked the NSW Police to review its conduct and take appropriate steps and the NSW Police could have had no doubt that it should have treated his email as internal review request;
• The decisions referred to by NSW Police are different from the circumstances of DHU’s case, or were wrong;
• A member of the public should not be criticised for not knowing the relevant legislative provisions; and
• NSW Police should classify a complaint about personal information as an application for internal review.^[50]

Tribunal’s decision

The Tribunal said:

• It did not agree that that the case law principles were wrong — they were relevant to the construction of the PPIP Act, and it had no power to dispense with the requirement for an application for internal review;
• DHU’s emails had, on their face, to convey that an application for internal review was sought;
• It had referred to PC v University of New South Wales and Y v Director-General, Department of Education, which have been widely applied, and agreed with NSW Police that the test is whether the emails reasonably conveyed that DHU was seeking an internal review;
• The Tribunal can take into account the absence of a reference to the PPIP Act;
• DHU had other options besides s 53 and the fact that NSW Police had treated DHU’s emails as a general complaint and failed to act on them did not assist DHU as his intention was not made clear from the face of the emails;
• If DHU intended to apply for an internal review it (the Tribunal) would have expected the emails to raise ‘privacy’ but they didn’t;
• The Tribunal’s views in PC v University of New South Wales are apposite —  the PPIP Act does not require an agency to consider every complaint that it receives in terms of the privacy legislation;
• It was open to NSW Police to consider DHU’s emails as an application for internal review but it was not required to do so;
• The Tribunal has no jurisdiction and NSW Police Force’s dismissal application succeeds.^[51]

In the Appeal Panel

“This appeal is yet another instance of the phenomenon, all too common, for Australian lawyers and courts to attempt to resolve novel disputes by reference to judicial elaboration rather than the text of an applicable statute.”^[52]

The Appeal Panel dismissed DHU’s appeal.^[53]

The Appeal Panel set out the text of s 53^[54] and said the information was DHU’s personal information^[55] but instead of applying the statutory test in s 53 the Appeal Panel said:

• “PC v University of New South Wales, is the applicable test that has been consistently applied by the Tribunal in determining whether a particular communication of a member of the public to a public sector agency is, in fact, a request for internal review under the PPIP Act”.^[56]
• “The Tribunal has consistently required that the surrounding context and the contents of the communication reasonably convey to the public sector agency that ‘a statutory right is being invoked’: see Y v Director General, Department of Education & Training [2001] NSWADT 149, at [16].” ^[57]
• “The Tribunal appropriately identified and applied the test as set out in PC v University of New South Wales”.^[58]
• “… We can find no injustice in the manner in which the Tribunal dealt with the matter before it.”^[59]
• DHU has failed to demonstrate any error, his emails did not reasonably convey that he was seeking an internal review.  His application for leave to appeal also fails.^[60]

Justice in the Tribunal

“The duty imposed by the statute must be obeyed.  It cannot be rejected because of pre-existing or overblown judicial dicta.”^[61]

Persons have a legal right to have their case decided according to the law, including the law of natural justice (s 38 (2) Civil and Administrative Tribunal Act 2013 (NSW)). There is a social purpose that is served by natural justice and fairness in official decision making in Australia.^[62] Appearances affect the public’s confidence.^[63]

Decision-making involves a dispassionate approach that focusses on the individual merits of the case.^[64] A decision maker is expected to decide a matter, without predispositions or prejudgment, solely by reference to the facts of the case and the applicable law.^[65]

Imputed bias

Imputed bias is judged by how the decision and the process of arriving at it, judged reasonably and objectively, might appear to persons affected and to the public.^[66] It’s a general impression that’s involved.^[67]

In PC and in DHU the Tribunals and Appeal Panels arrived at the decision that the applicants had not applied for an internal review and the Tribunal did not have the jurisdiction (to review the agencies’ conduct) by the process of making up the requirement that persons must know the law and cite it to the agency. Non-compliance with the made-up requirement resulted in the abrogation of both the person’s express statutory right to a review of conduct and the agency’s express statutory duty to undertake the review.

That process and the decisions that resulted from it, viewed objectively and reasonably, give an impression of manifest unfairness  that’s made worse when Tribunals and Appeal Panels tell review applicants the legal equivalent of ‘that’s how we do things around here, now piss off’. And no reasonable review applicant or lay-person-member-of-the-public could be expected to think otherwise.

“The High Court has … been prepared to depart from its own decisions”^[68] and I think the Tribunal should too. Its case law principles are not the law.

Precondition to the Tribunal’s jurisdiction?

The principle that an application for an internal review is a precondition to the Tribunal’s jurisdiction is doubtful and, “there is ample High Court authority that provisions conferring jurisdiction or granting powers to a court are not to be read by making implications or imposing limitations which are not found in the express words …”^[69]

(More on this at a later date.)

 

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[1] Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs)[2010] HCA 1.(3 February 2010), [64].

[2] PC v University of New South Wales (No 2) [2005] NSWADT 264 (22 November 2005), [54].

[3] PC v University of New South Wales (GD) [2005] NSWADTAP 72 (20 December 2005), [6].

[4] PC v University of New South Wales [2005] NSWADT 157 (8 July 2005), [2].

[5] Ibid. [1].

[6] Ibid. [7].

[7] PPIP Act, s 53 (3).

[8] PPIP Act, s 53(6).

[9] www.legislation.nsw.gov.au/dp2-pco_plain_language_policy.pdf

[10]Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42, [55].

[11] PC v University of New South Wales [2005] NSWADT 157 (8 July 2005), [2].

[12] Ibid. [7].

[13] Ibid. [3].

[14] Ibid. [10].

[15] Ibid. [11].

[16] Ibid, [12].

[17] Ibid. [14].

[18] Ibid. [18].

[19] PPIP Act, long title.

[20] ADT Act, s 6 (1) a decision includes (a) … refusing to make a determination, (g) doing or refusing to do any other act or thing.

[21] ADT Act, s 65(1).

[22] ADT Act, s 73(4)(c).

[23] AQO v Minister for Finance and Services [2016] NSWCA 248 (05 September 2016), [74].

[24] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 (30 September 2009), [47].

[25] PC v University of New South Wales (GD) [2005] NSWADTAP 72 (20 December 2005), [12]

[26] Ibid. [16].

[27] Ibid. [16].

[28] ADT Act, s 55(2)(c).

[29] PC v University of New South Wales (GD) [2005] NSWADTAP 72 (20 December 2005), [20].

[30] Ibid. [21].

[31] Ibid. [27].

[32] Ibid. [28].

[33] Ibid.[29].

[34] Ibid.

[35] Ibid.

[36] Ibid. [30].

[37] Ibid. [33].

[38] PC v University of New South Wales (No 2) [2005] NSWADT 264 (22 November 2005).

[39] Regie National des Usines Renault SA v Zhang [2002] HCA 10(14 March 2002), [145].

[40] R v Hannigan [2009] QCA 40 (3 March 2009), [53].

[41] DHU v Commissioner of Police, NSW Police Force [2018] NSWCATAD 126 (30 April 2018) and DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAP 282 (28 November 2018).

[42] DHU v Commissioner of Police, NSW Police Force [2018] NSWCATAD 126 (30 April 2018), [2].

[43] Ibid. [5].

[44] DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAP 282 (28 November 2018), [12].

[45] DHU v Commissioner of Police, NSW Police Force [2018] NSWCATAD 126 (30 April 2018), [2].

[46] Ibid. [3].

[47] Ibid. [23].

[48] Ibid. [16-17], [19].

[49] Ibid. [27].

[50] Ibid. [28-39].

[51] Ibid. [40-54].

[52]Alexander v Perpetual Trustees WA Limited [2004] HCA 7 (12 February 2004), [87].

[53] DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAP 282 (28 November 2018) [58 (2)].

[54] Ibid. [19].

[55] Ibid. [17].

[56] Ibid. [43].

[57] Ibid. [44].

[58] Ibid. [47].

[59] Ibid. [55].

[60] Ibid. [56].

[61] John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 (10 September 2003), [114].

[62] Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 (29 March 20010, [136].

[63] Ibid.

[64] Ibid. [153].

[65] Ibid.[158].

[66] Ibid. [134].

[67] Ibid. [146].

[68] Torrens Aloha Pty Ltd v Citibank N A [1997] FCA 77 (21 February 1997).

[69] Beck v LW Furniture Consolidated (Aust) Pty Ltd [2012] NSWCA 76 (5 April 2012), [131].