Old sin
Y v Director General, Department of Education & Training [2001] NSWADT 149 (12 September 2001) is about the privacy rights of an employee (Y) of the Department of Education (the Department). Y was aggrieved at the Department’s handling of defamatory personal information it had collected in a review of management practices that Y said lacked procedural fairness.
The Department had a duty to review its conduct but didn’t. It challenged the jurisdiction of the New South Wales Administrative Decisions Tribunal (the Tribunal) to review its conduct on the basis that Y’s application to the Department wasn’t competent because her information wasn’t covered by the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIP Act), which meant, the Department said, that a pre-condition to the Tribunal’s jurisdiction had not been satisfied, which made Y’s application to the Tribunal invalid.
The case appears to hinge on two things. The first is a silent assumption that the word ‘conduct’ in s 53 and s 55 has a narrow meaning inferred from s 52. The second is the narrow construction the Tribunal gave to the scope of ‘personal information’ when it widely construed an exclusion to personal information in s 4(3)(j). Combined, they were the basis for the Tribunal’s conclusion that it did not have the jurisdiction to review the Department’s conduct.
It was a corruption of the law. On principle(s) (of statutory construction) ‘conduct’ and ‘personal information’ required a generous construction that advanced, and did not frustrate, the purpose of the PPIP Act – “to provide for the protection of personal information, and for the protection of the privacy of individuals generally”[1]
Long shadow
The PPIP Act had indeed conferred on the Tribunal the jurisdiction to review the Department’s conduct. But it had not conferred on the Tribunal the jurisdiction to decide substantive issues posed as jurisdictional objections by an agency that had failed its statutory duty to undertake a review of its conduct and make the findings that the PPIP Act had given the Tribunal the jurisdiction to review.
Background
The Department of Education decided to review management practices at a small country school after parents complained that the school had a high turnover of school principals.
Some allegations were made against Y, who was employed by the Department as a senior clerical assistant at the school. The management reviewers asked Y some questions about the allegations. She denied some of the allegations and, on the advice her union, the Public Service Association, declined to answer other questions on the basis that further details were needed (which seems eminently reasonable to me).
Conclusions and recommendations
It appears that Y did not get the information she requested or the opportunity to respond to it (the Department never claimed that she did) because the management review report said that Y was non-responsive when questioned.
Its conclusions included that Y had been an active and passive supporter of actions that had contributed to the breakdown of interpersonal relations on the school.[2] The report recommended that Y be transferred to another school.[3]
Speculation
Which invites speculation about why a year-long management review would not provide Y with an opportunity to be heard on all of the allegations that were said to be made against her.
Didn’t the management reviewers want to get to the bottom of things?
Was there a he-said-she-said that the reviewers couldn’t be arsed to sort out?
Was the school’s failure to retain school principals caused by the Department’s failure to properly train and support its new principals?
Was Y a convenient scape-goat?
PPIP Act commences
On 1 July 2000 the PPIP Act commenced and the Department became an agency that held ‘personal information’ i.e. “information or an opinion … about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion” (s 4(1)).
(Sub sections 4(3)(a-k) contain exclusions to personal information.)
The Act’s information protection principles (IPPs) imposed obligations on the Department that included:
The obligation to ensure that it: did not keep information for longer than was necessary for purposes for which the information may lawfully be used; and disposed of information securely; and protected information by taking security safeguards against all misuse (s 12).
The obligation to take steps that enabled persons to ascertain whether the agency held information about them, its nature, the main purposes for which the information was used, and the person’s entitlement to access the information (s 13).
The obligation to, at the request of the individual, without delay or expense, give the individual access to their information (s 14).
The obligation to, at the request of the individual, make appropriate amendments to ensure the information is accurate, relevant, up to date, complete and not misleading, and the obligation to notify recipients of the information of the amendments (s 15).
The obligation to not use the information without taking steps to ensure the information is relevant, accurate, up to date, complete and not misleading (s 16).
The obligation to not use the information for a purpose other than that for which it was collected unless the individual consents, or the use is for a directly related purpose, or the use is necessary to prevent or lessen a serious and imminent threat to life or health (s 17).
The obligation to not disclose the information to anyone but the person to whom the information relates unless the disclosure is directly related to the purpose of collection, or the person is aware that information of the kind is usually disclosed to the other person or body, or the disclosure is necessary to prevent or lessen a serious and imminent threat to life or health (s 18).
The obligation to not disclose sensitive personal information unless the disclosure is necessary to prevent a serious or imminent threat to life or health, and to not disclose the information outside NSW unless a condition is satisfied (s 19).
(Exemptions from compliance were provided in ss 22-28 of the PPIP Act.)
Y’s rights
Y had rights that correlated to the Departments obligations.
(A correlative right arises when a duty is imposed for the benefit of particular persons who may be injured by its contravention.[4])
Defamatory information disclosed
On 1 August 2000, one month after the Act commenced, the Department called a meeting and informed the school community of the report’s findings and recommendations.[5] A couple of days later a major newspaper ran a story about the review which mentioned poor Y by name.[6]
(A second report that contained different defamatory personal information was disclosed to a different audience at some stage.[7])
Request for amendment
The Public Service Association (PSA) wrote to the Department and asked it to both correct the wrong information that it had circulated about Y and withdraw the threat to transfer her, or else,[8] but it seems that the Department ignored the PSA and it seems that the PSA didn’t follow through promptly, and maybe not at all.[9]
Internal review
Y and the assistant teacher made a joint internal review application directly to the Department on 23 February 2001.[10] In their application they said that:
- an edited version of the report had been presented to their community at a public meeting and they were distressed and embarrassed when the false, misleading and defamatory statements about them were read out,
- they had requested through their unions that the false information be removed from the report,
- on August 23rd they became aware that a second version of the Report had been published and distributed to a restricted audience.
- they immediately requested a copy of the second Report in its entirety and some time later had received a heavily edited version of that Report.
- this Report contains false, misleading, unsubstantiated and defamatory personal information about both applicants and family members of one applicant and recommends further investigation into those allegations.
- they had not been contacted by the Department or their unions regarding the investigations and the report stands unchallenged.
- they believed that the public disclosure of these allegations breached sections of the Privacy and Personal Information Protection Act 1998, including Section 16 Agency must check accuracy of personal information before use.
- section 14 of the Act gave them the right to have access to the personal information which was collected about them and family their members during and after the review and subsequent investigations.
- they requested access to the documents.
- section 15 of the Act gave them the right to the alteration of personal information published in the above mentioned two Reports.
- this request has been delayed pending responses from the Department and/or their unions which, to date, have not been received.[11]
Department’s reply
The Department advised Y and the assistant teacher to wait until it had processed their Freedom of Information Act 1989 (FOI Act) applications and if it decided to give them access they could make another request for amendment.
Then the Department said their application was lodged outside the six months required by s 53(3)(d) of the PPIP Act and as there was no evidence that the Management Review Report was not relevant, complete, accurate, up-to-date and not misleading their application for an internal review was declined.[12]
Not satisfied
It seems likely that Y was not satisfied with:
- The Department’s advice that she should wait and see if it gave her access to her personal information under the FOI Act, then make another request for amendment, when s 14 and s 15 of the PPIP Act obliged the Department to provide access and make appropriate amendments to personal information; or
- The Department’s refusal to undertake the review on the basis that her application was late, when her application was, in fact, in time (time (with respect to the second report) commenced to run on 24 August 2000. Y lodged her application directly with the Department on 23 February (see s 36 Interpretation Act 1987 (NSW)); or
- The Department’s assertion that there was no evidence that the Management Review Report was not accurate and complete etc. when Y was asserting that the information that the report contained about her was false, misleading and defamatory, and when she believed that the process that informed the report was unfair;
because she applied to the Tribunal for a review of the Department’s conduct.[13]
In the Tribunal
The Department, who was represented by the Crown Solicitors Office, said that the Tribunal lacked the jurisdiction to review its conduct because:
- Y’s personal information was not covered by the PPIP Act, therefore her application was incompetent.
- The conduct occurred before the PPIP Act commenced.
- The application was invalid because the pre-condition that there be a valid application for internal review was not satisfied.[14]
Which was rubbish because:
- The PPIP Act did cover Y’s information (see Covered by the Act)
- The PPIP Act had commenced when the conduct occurred (see PPIP Act commences) and,
- Y’s application complied with the requirements of the PPIP Act (see s 53 and s 55 of the PPIP Act).
Valiant effort
The Privacy Commissioner exercised his s 55(7) of the PPIP Act right to appear and (attempted to be) heard in the proceedings.
Covered, competent, valid
Reasons obscure
The Tribunal decided that Y’s information wasn’t covered, that the Department’s objection succeeded, and the Tribunal was without jurisdiction.[15] But it didn’t say how it was without jurisdiction as a consequence of Y’s information not being covered, which makes it difficult for me and, I expect, other persons who don’t have a law qualification to understand what happened to Y’s seeming express review rights and the Tribunal’s jurisdiction to review the Department’s conduct.
Incompetent
The High Court said, “The expression “incompetent” normally suggests want of legal capacity and consequential invalidity”[16] and another High Court said, “Proceedings which are instituted and which fall outside the statutory categories are incompetent”[17] so perhaps the Department was asserting that for some reason Y did not have the legal capacity to apply for an internal review despite the natural and ordinary meaning of s 53(1) and s 55(1) which say (respectively):
“A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct”,
“If a person who has made an application for internal review under section 53 is not satisfied with … the findings of the review, or … the action taken by the public sector agency in relation to the application … the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53.”
Surmises
It could be that the Department (and the Tribunal) thought that Y’s application was incompetent because s 52(1)(a) says: “This Part applies to the following conduct: (a) the contravention by a public sector agency of an information protection principle that applies to the agency.”
Perhaps the Department and Tribunal reasoned: ‘The IPPs apply to an agency that collects or holds ‘personal information’. If Y’s information is not ‘personal information’ because it is not covered by the Act then the IPPs do not apply to the Department. If the IPPs do not apply to the Department then the conduct that aggrieved Y is not “the contravention by a public sector agency of an information protection principle that applies to the agency”. Consequently Y is not a person who is aggrieved at ‘conduct’ within the meaning of s 52(1)(a) and she lacks, therefore, the legal capacity to apply for a review under s 53(1).
Wrong and unfair
If my surmises are correct then Y’s review rights came down to whether the word ‘conduct’ in s 53 and s 55 has its natural and ordinary meaning, which is behaviour[18], or whether its meaning is inferred from s 52(1)(a) to mean the contravention of an IPP that applies to the agency.
If the Tribunal gave ‘conduct’ the narrow meaning then the Tribunal was, I think, wrong, and if Y did not have an opportunity to make a submission on the meaning of conduct then the Tribunal was, I think, unfair.
Meaning of ‘conduct’
“It is well recognized that a word may be used in two different senses in the same section of the one Act.”[19]
Starting point
I don’t know what the Department would have said to support that the word ‘conduct’ in s 53(1) and s 55(1) took its meaning from s 52(1) if the issue had been argued in the Tribunal but the Court of Appeal said:
First, the correct starting point in dealing with statutory provisions of the same legislature is … to assume that each provision can be given operation in accordance with its terms. Secondly, the need for reconciliation will not arise unless and until, on a careful construction of the legislative provisions, inconsistency is identified. Thirdly, … “[i]t 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”. A provision which confers a right of appeal has the dual function of conferring jurisdiction on the court to which the appeal may be brought.[20]
The assumption is, therefore, that s 52, s 53 and s 55, can operate in their own terms.
And given that the PPIP Act confers on the Tribunal the jurisdiction to review ‘conduct’ which necessitates knowing what ‘conduct’ means, and given that the conferral of review rights on persons has the dual function of conferring jurisdiction on the Tribunal, then the principle about the inappropriateness of reading limits into jurisdiction conferring provisions applies and clear words, not an implication from s 52, were needed to narrow the meaning of conduct and take away Y’s review rights and the Tribunal’s review jurisdiction.
Beneficial construction
The High Court said a remedial Act designed to achieve high social objectives must be construed according to its terms and it was appropriate to give an ambiguous provision a meaning which advances, and does not frustrate, the purpose of the Act. Provisions should be construed beneficially and not narrowly. [21]
The PPIP Act is such an Act. Sections 53(1) and 55 (1) should, therefore, be construed according to their terms and if there is ambiguity about the meaning of the word ‘conduct’ it is appropriate that ‘conduct’ be given the meaning that advances, and does not frustrate, the purpose of the Act (which purpose is the protection of personal information and the privacy of individuals).
‘Conduct’ in s 53 and s 55 should be construed beneficially to have its natural and ordinary meaning, which is ‘behaviour’ and not narrowly to mean ‘the contravention by a public sector agency of an information protection principle that applies to the agency’.
Natural and ordinary meaning
Another High Court said:
It is a basic rule of statutory construction that legislative provisions are to be construed according to their natural and ordinary meaning unless that would lead to a result that the legislature must be taken not to have intended. The rule serves the important purpose of ensuring that those who are subject to the law understand the nature and extent of their rights and obligations. And because it serves that purpose, good reason must be shown before it will be concluded that the legislature did not intend the consequences that would flow if the provision in question were given its natural and ordinary meaning.
Although the rule that legislative provisions are to be construed according to their natural and ordinary meaning is a rule of general application, it is particularly important that it be given its full effect when, to do otherwise, would limit or impair individual rights …[22]
The result of giving ‘conduct’ its natural and ordinary meaning is that persons aggrieved at an agency’s handling of their personal information will understand that they are entitled to a review of the conduct that aggrieved them and agencies won’t need to imply into s 53(2) a limit from s 52. Agencies will understand that conduct means the behaviour they engaged in that aggrieved the person. That’s surely the result that Parliament did intend, and not a result that Parliament must be taken not to have intended. And happily, the person’s review rights are not limited or impaired when ‘conduct’ is given its natural and ordinary meaning.
Practical injustice
The denial of an opportunity to make submissions on an issue that is material to a Tribunal’s decision is a practical injustice.[23]
Practical injustice occurred at two levels. First, Y was entitled to written notice of the Department’s findings. If the Department’s finding was that Y lacked the legal capacity to apply to it for a review because, in the PPIP Act, conduct ain’t conduct, then it was required to say so in its findings so Y could be satisfied or not with that finding before she applied to the Tribunal for a review of it.
It was a practical unfairness to spring on Y in the Tribunal difficult legal questions that she was entitled to have prior written notice of. It was a practical unfairness to require her to make submissions on the questions or obtain expensive legal representation or abandon the express rights to a review (that the Act entitled her to at no cost) and her chance of a remedy.
Second, Y was not (it appears) made aware of and given an opportunity to make a submission on the Tribunal’s and Department’s (apparent) shared assumption that conduct meant the contravention of an IPP that applied to the agency, which assumption was material to the Tribunal’s decision. And that’s not fair.
Applications competent and valid
If ‘conduct’ has its ordinary meaning, which is behaviour (and principles of statutory construction support that it does), then, Y’s application to the Department was competent, s 53(1) entitled her to a review of the conduct that aggrieved her, and her s 55(1) application to the Tribunal was valid.
Covered by the Act
In the PPIP Act personal information means “information or an opinion … about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion” (s 4(1)).
The Department said Y’s information wasn’t covered by the Act. By that it meant that her personal information wasn’t personal information for the purpose of the IPPs because s 4(3)(j) excludes “information or an opinion about an individual’s suitability for appointment or employment as a public sector official” from the definition of personal information in the Act.
The IPPs protect personal information and the privacy of individuals by imposing “prohibitions or restrictions upon the conduct of each public sector agency to which the Act applies”[24] Section 4(3)(j), in excluding personal information from the Acts definition, restricts the privacy rights of individuals.
Applicable principles
Some principles relevant to the construction of provisions that protect human rights are:
In construing legislation which protects or enforces human rights the principle that provisions must be read in light of the statutory objects is of particular significance and courts have a special responsibility to take account of and give effect to the statutory purpose. [25]
In accordance with the principle that a court has a special responsibility to take account of and give effect to the purposes and objects of legislation designed to protect human rights “provisions that restrict rights should be construed narrowly while conversely provisions which confer or amply [sic] rights should be generously construed”[26].
“The Parliament has conferred on all members of the public protections in relation to their personal information held by public sector agencies, apparently defined in expansive terms. To give such legislation a purposive or “beneficial” interpretation is to refuse to imply limitations not expressed in clear terms … That approach should be adopted to the construction of the definition.”[27]
“The court is also 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.”[28]
“Although the rule that legislative provisions are to be construed according to their natural and ordinary meaning is a rule of general application, it is particularly important that it be given its full effect when, to do otherwise, would limit or impair individual rights.[29]”
“To read words into any statute is a strong thing and, in the absence of clear necessity, a wrong thing”.[30]
“It is unnecessary to say that great caution must always be exercised in giving a wider operation to the intention of the legislature than the literal meaning of the enacting words requires.”[31]
“The Parliament having chosen such an elaborate and specific definition for the key provision of the legislative scheme, a court should pause before stretching the highly specific language in order to overcome a supposed practical problem. To do so would not be to construe the text, but to substitute a new and broader text for the one chosen by the Parliament after extensive consultation, investigation and debate.”[32]
“Ordinary principles of statutory construction, observed by this Court since its earliest days, have construed legislation, where there is doubt, to protect the fundamental rights of the individual”.[33]
The “reputation of every human being deserved protection under law. “Reputation” … “is the ‘fundamental foundation on which people are able to interact with each other in social environments’. At the same time, it serves the equally or perhaps more fundamentally important purpose of fostering our self-image and sense of self-worth.”[34]
Application of principles
The application of the above principles to the construction of s 4(3)(j) results in the conclusion that the words ‘appointment or employment’ mean ‘the act of placing in a job or position’.[35] It’s an appropriately narrow construction that accords with the ordinary meaning of the words and, because it’s narrow, it promotes, rather than frustrates, the purpose of the PPIP Act.
Principle of legality reversed
The Privacy Commissioner and Y sought a narrow construction, but the Tribunal said “the limitation that the Privacy Commissioner and the applicant seek to have read into the words of the exclusion can not be found”[36].
The Department said, “provided the information was ‘about’ suitability for appointment or employment as a public sector official that was sufficient to bring it within the net”[37].
The Tribunal (without reference to the Acts purpose or any principle of statutory construction) widened the scope of the exclusion by reading the words ‘current or prospective’ into ‘suitability for appointment or employment’. It said the exclusion applied to information that canvassed the aptitude and competence of the employee with respect to their current or prospective employment in the routine personnel context of recruitment, promotion, discipline and involuntary retirement.[38]
The Privacy Commissioner said “a management review does not belong to the routine personnel process of agencies.” The Tribunal said a management review is an orthodox instrument of administration that frequently looks at the performance of employees[39] (but it did not comment on the orthodoxy or otherwise of a management review that lacked procedural fairness.)
The Tribunal decided that Y’s information fell within the exclusion as the Tribunal interpreted and applied it and, “[c]onsequently the agency’s objection succeeds and the Tribunal is without jurisdiction”. [40]
Jurisdiction assumed
The Department’s objection – that the Tribunal lacked jurisdiction because Y’s application to the Tribunal was not valid because the pre-condition that there be a prior valid application for internal review was not satisfied because her application to the Department was not competent because her information was not covered by the Act because her information was about her suitability for appointment or employment – succeeded because the Tribunal made a chain of errors that commenced with its assumption of jurisdiction to decide the issue, which assumption of jurisdiction is discussed in the upcoming Old sin, long shadow: Part 2.
[1] PPIP Act, long title.
[2] Y v Director General, Department of Education & Training [2001] NSWADT 149 (12 September 2001), [9].
[3] Ibid. [7].
[4] Leask Timber and Hardware PTY. LTD. v. Thorne [1961] HCA 73 (16 November 1961), Kitto J, [7].
[5] Y v Director General, Department of Education & Training [2001] NSWADT 149 (12 September 2001), [21].
[6] Ibid. [12].
[7] Ibid. [21].
[8] Ibid. [14].
[9] Ibid. [21].
[10] Ibid. [20].
[11] Ibid.
[12] Ibid. [22].
[13] Ibid. [24].
[14] Ibid. [1-2].
[15] Ibid. [37].
[16] Orr v Ford [1989] HCA 4 (1989) (8 February 1989), [8].
[17] Yule v Junek (1978) HCA 4 (22 February 1978), [10].
[18] < www.collinsdictionary.com/dictionary/english/conduct>
[19] McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19 (5 April 1979), [4].
[20] Lewis v Sergeant Riley [2017] NSWCA 272 (27 October 2017), [5].
[21] X v Commonwealth [1999] HCA 63 (2 December 1999), [146].
[22] Marshall v Director General Department of Transport [2001] HCA 37 (21 June 2001), [37-38].
[23] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 (13 February 2019), [38].
[24] Director General, Department of Education and Training v MT [2006] NSWCA 270 (29 September 2006), [26].
[25] Waters v Public Transport Corporation [1991] HCA 49 (3 December 1991), [21].
[26] Howe v QANTAS Airways Ltd [2004] FMCA 242 (15 October 2004), [7.26].
[27] AQO v Minister for Finance and Services [2016] NSWCA 248 (5 September 2016), [134].
[28] AQO v Minister for Finance and Services [2016] NSWCA 248 (05 September 2016), [74].
[29] Marshall v Director General Department of Transport [2001] HCA 37 (21 June 2001), [38].
[30] Western Australia v Commonwealth [1975] HCA 46 (17 October 1975), [6].
[31] Furlong v James [1940] HCA 22 (10 September 1940).
[32] Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 (06 October 2005), [204].
[33] Ibid. [215].
[34] Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (28 September 2006), [161].
[35] <www.collinsdictionary.com/dictionary/english/appointment>, <www.collinsdictionary.com/dictionary/english/employment>.
[36] Y v Director General, Department of Education & Training [2001] NSWADT 149 (12 September 2001), [32].
[37] Ibid. [30].
[38] Ibid. [36].
[39] Ibid. [34]
[40] Ibid. [37].
[41] Ibid. [74].
