Discretion
The NSW Civil and Administrative Tribunal dismissed a proceeding (a privacy matter) commenced by DQW, a client of the Department of Family and Community Services (now the Department of Communities and Justice), after it found that DQW had filed her review application before a pre-condition that gave the Tribunal jurisdiction existed.[1]
(The Tribunal’s finding was based on a misconstruction of s 55(1)(b) of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act): see ‘Of despots and sheep’).
Consequently, the Tribunal didn’t deal with another of the Department’s grounds for dismissal, which was that the Department had “the discretion to refuse the application for internal review as it was outside of time and not competently made”.[2] (No evidence was referred to that supported that DQW’s application was, in fact, late.)
The ground would almost certainly have succeeded because the Tribunal thinks a public agency has “a discretion to refuse to accept the [lodgement of a late] application which is not amenable to reconsideration by the Tribunal”[3].
The Tribunal is right and wrong: it is right to say that the exercise of the discretion is not amenable to reconsideration but it is wrong to just leave it at that because the Tribunal can go one better. It can exercise the discretion for itself.
And a discretion must, as a matter of law, be exercised reasonably.[4]
Source of power
The PPIP Act says persons can apply to the Tribunal for a review of conduct if they are not satisfied with action taken by the agency in relation to the person’s internal review application. The Act confers review rights on persons and jurisdiction on the Tribunal without limiting the Tribunal’s review powers under the Administrative Decisions Review Act 1997 (ADR Act).
The ADR Act gives the Tribunal a duty to, when it determines an application for administrative review, decide what the correct and preferable conduct is having regard to relevant facts and applicable laws. For the purpose of deciding what’s correct and preferable the Tribunal is authorised to do everything that any relevant law empowered the agency to do.
The PPIP Act is a relevant law. It gives an agency the power to allow late applications and the ADR Act gives that power to the Tribunal.
Legislative provisions
PPIP Act, long title
The PPIP Act is, “An Act to provide for the protection of personal information, and for the protection of the privacy of individuals generally …”
ADR Act, s 3(d)
It is an object of the ADR Act “to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales”.
Power to allow
S 53(3)(d)
The discretionary power to allow lodgement at a later date is in s 53(3)(d) of the PPIP Act which says, “An application for such a review must … 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 …”
The High Court said a court’s discretion to order an extension of a limitation period was “a discretion to grant, not a discretion to refuse”.[5]
Conferral of review rights; conferral of jurisdiction
S 55(1)(b) of the PPIP Act and s 9 of the ADR Act say, respectively:
S 55(1)(b), PPIP Act
“If a person who has made an application for internal review under section 53 is not satisfied with … the action taken by the public sector agency in relation to the application, the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53.”
S 9, ADR Act
“The Tribunal has administrative review jurisdiction … if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision …”
Conduct is a reviewable decision
S 7(2)(a), ADR Act
“[T]he conduct of an administrator … is an administratively reviewable decision if enabling legislation identifies that conduct … as conduct … over which the Tribunal has administrative review jurisdiction …”
Power not limited
S 55(3), PPIP Act
“Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997.”
Power to exercise all functions of any Act
S 63, ADR Act
(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
(When the High Court construed an equivalent provision of the Administrative Appeals Tribunal Act 1975 (Cth) it agreed that the power to “exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision … extends the authority of the Tribunal so that it may more adequately exercise its function of reviewing on the merits the subject decision.”[6])
Discretionary decision making
The High Court has also said that discretionary powers have to be exercised “consistently with the reasons for which the power has been afforded and the interests involved in the decision in question. In a public law matter the interests will commonly involve the community’s interest in lawful administration …”[7]
Furthermore, discretionary decisions have to be: confined, within power, just, unbiased, fair, reasonable, rational, justified, and made with priority given to the substantive merits; it could be imperative that a discretion is exercised in an applicant’s favour.
Confined
Discretionary powers are confined by and ascertained by the subject matter, scope and purpose of the legislation that confers the discretion.[8]
Within power
If a decision maker has declined to consider matters that he ought to consider, or has taken into consideration matters that he ought not to consider, then he has not exercised his discretion within the ambit of his power. [9]
Just
It is presumed that Parliament envisaged that a statutory office-holder, on whom particular powers and duties are conferred by an Act of Parliament, will decide “carefully and justly.”[10]
“The object of the discretion … “is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.” In determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.”[11]
Unbiased
The “requirements of natural justice include absence of bias, actual or apparent, on the part of the decision-maker … It is improbable in the extreme that Parliament intended that bias on the part of a delegate would not vitiate the delegate’s decisions.[12]
A decision affected by actual bias may lead to a discretion being exercised for an improper purpose or by reference to irrelevant considerations.[13]
Fair
“Decision-makers, judicial or administrative, may be found to have acted unfairly even though their good faith is not in question. People whose fundamental rights are at stake are ordinarily entitled to expect more than good faith. They are ordinarily entitled to expect fairness.”[14]
Reasonable
The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably.[15]
The implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made.[16]
Rational
Officials exercising discretion are required to comply with the canons of rationality i.e. their decisions must be reached by reasoning which is intelligible and reasonable, directed towards and related intelligibly to the purposes of the power, and impartial and consistent.[17]
Required to be exercised
“[I]t may appear from the rest of the Act that Parliament intended that applicants should have a right to call for the exercise of the power. “There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so”.”[18]
“Where the word “may” is used, one begins “with the prima facie presumption that permissive or facultative expressions operate according to their ordinary natural meaning”. The Court looks to the general scope and objects of the enactment conferring the power. Where the power is “deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised””.[19]
Justified
A “decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification”[20].
Substantive merits
“The law in Australia [has] marched away from a rigid, unyielding application of rules as to time towards a more realistic acceptance of the fact that human error is inescapable and priority should be given to substantive merits.” [21]
Unjustified
The Department didn’t justify its decision to not allow DQW to lodge an application at a date later than six months from when she first became aware of the conduct.
So it’s not known whether the Department confined its considerations to the subject matter, scope and purpose of the PPIP Act, and the substantive merits of DQW’s case, or whether, heedless of the community’s interest in lawful administration, it reasoned with self-interest that it’s non-exercise of the discretion closed the door (according to the Tribunal’s case law but not according to the legislation) on DQW’s review rights in the Tribunal.
Double standard
The Department says it works with children, adults, families and communities to improve lives so people with a real sense of choice and control are in charge of their own lives, but in DQW’s case the Department worked against her with delays, obstruction and opposition when she sought control of her and her family’s personal information. Rather than gain a sense of choice and control, DQW gained a sense of threats and harassment.
Furthermore, there is hypocrisy in the Department’s behaviour in post-dating DQW’s application for internal review to extend time for itself to complete the review, then refusing arbitrarily to allow her to lodge a later-date application, then exceeding the extended deadline by several weeks.[22]
Maybe that was the Department’s idea of justice in DQW’s case.
[1] DQW v Secretary, Department of Family and Community Services [2019] NSWCATAD 213 (21 October 2019), [30].
[2] Ibid. [37].
[3] Y v Director General, Department of Education & Training [2001] NSWADT 149 (12 September 2001), [73].
[4] Comcare v Banerji [2019] HCA 23 (7 August 2019), [40].
[5] Brisbane South Regional Health Authority v Taylor [1996] HCA 25 (2 October 1996), Toohey and Gummow JJ.
[6] Shi v Migration Agents Registration Authority [2008] HCA 31 (30 July 2008), [36].
[7] Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 (14 March 2002).
[8] Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013), [23-24].
[9] R v Mahony [1931] HCA 36 (12 November 1931).
[10] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 (3 May 2001), [184].
[11] Brisbane South Regional Health Authority v Taylor [1996] HCA 25 (2 October 1996), McHugh J.
[12] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 (3 May 2001), [43].
[13] Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013), [26].
[14] Plaintiff S157/2002 v Commonwealth [ 2003] HCA 2 (4 February 2003), [37].
[15] Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013), [29].
[16] Ibid. [91].
[17] Ibid. [25].
[18] R v Mahony [1931] HCA 36 (12 November 1931).
[19] Brisbane South Regional Health Authority v Taylor [1996] HCA 25 (2 October 1996), Kirby J.
[20] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (8 August 2018), [10].
[21] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 (3 May 2001), [224].
[22] Re the Department’s attitude to its clients see <https://www.facs.nsw.gov.au/about/what>, accessed on 30 October 2019;
re threats and harassment: see paragraphs [10] and [2] of the Tribunal’s reasons;
re delay: DQW requested access on 23 November 2017; the Department gave partial access on 8 June 2018. DQW reapplied on 25 October 2018 and was given further access on 19 March 2019. See paragraphs [8], [9], [11] and [16] of the Tribunal’s reasons;
re obstruction: the Department claimed that DQW had not requested amendment of her information nor identified the false information when it must have been obvious to it from her applications to it that DQW wanted it to amend false personal information. And, it’s highly unlikely that DQW would not have told the Department she wanted it to amend the wrong information that she had participated in the Brighter Futures program. But even if she hadn’t her application to the Tribunal makes it plain that that’s what she wanted it to do. See paragraphs [45], [10], [11] and [2] of the Tribunal’s reasons;
Re hypocrisy: See paragraphs [12], [14(b)], [16] and [14(a)] of the Tribunal’s reasons.
