Reasoning rejected
I don’t know what it’s like to be a member of the New South Wales Civil and Administrative Tribunal or whether a member can be truly independent or whether their decisions are required to be consistent rather than correct but I do know that they should not, directly or otherwise, “adopt the reasoning”[1] of the Tribunal in Y v Director General, Department of Education & Training [2001] NSWADT 149 (12 September 2001) who, without considering the meaning of the key term, “appointment or employment”[2], or the purpose of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) (“to provide for the protection of personal information, and for the protection of the privacy of individuals generally…”: PPIP Act, long title) widely ‘construed’ the exception to the definition of ‘personal information’ in s 4(3)(j).
And who also dismissed the principle of legality ([3]) as “policy considerations which might be open to be taken into account if ambiguity can be found in the language used in the provision”.[4]
And who, despite the many arguments about the construction of the PPIP Act, did not discern any ambiguity that could be resolved by the application of the principle of legality.
And who, contrary to s 33 of the Interpretation Act 1987 (NSW), preferred, every time, a construction of a provision of the PPIP Act that did not promote the Act’s purpose over a construction that did promote the Act’s purpose.
And who, in an unwarranted departure from the ordinary meaning of the statute’s words, ‘construed’ a provision so it restricted a person’s rights and its own jurisdiction, then noted (apparently quite happily) that its ‘construction’ was consistent with the “numerous boundaries on the scope of its [the PPIP Act’s] operation”[5].
I don’t know what it’s like to be a member of the NSW Civil and Administrative Tribunal but I do know that persons who appear before it have the right to have their matters decided by an impartial Tribunal according to law and not according to the unprincipled purpose-defeating words of the Tribunal in Y v Director General, Department of Education & Training [2001] NSWADT 149 (12 September 2001).
[1] DTN v Commissioner of Police [2021] NSWCATAD 240 (16 August 2021), [20], [24].
[2]The word ‘appointment’ means: “the act of placing in a job or position”: <www.collinsdictionary.com/dictionary/english/appointment>.
The word employment has, by association, the same meaning as the word ‘appointment’ (see Deputy Commissioner of Taxation v Dick [2007] NSWCA (3 August 2007), [11-13]) and its defined meanings include: “the act of employing”: www.collinsdictionary.com/dictionary/english/employment.
[3] “The principle of legality, as a principle of statutory construction, requires that clear language be used in legislation if a person is to be deprived of a valuable right”: Tabcorp Holdings Limited v Victoria [2016] HCA 4 (2 March 2016), [68].
“[F]or the purposes of the principle of legality, individuals have a fundamental right or liberty to personal privacy”: W B M v Chief Commissioner of Police [2012] VSCA 159 (30 July 2012), [167].
“The common law has a long tradition of protecting persons’ right to privacy”: John Fairfax Publications Pty Ltd & 2 Ors v Ryde Local Court & 3 Ors [2005] NSWCA 101 (11 April 2005), [77].
[4] [59].
[5] [74].
