Powers preserved
A conclusion jumped to by the New South Wales Administrative Decisions Tribunal and adopted by the NSW Civil and Administrative Tribunal is applied in privacy cases to dismiss applications that the Legislature, it appears, intended the Tribunal to decide.
The conclusion – that an internal review application is a precondition to the Tribunal’s jurisdiction – was, it seems, arrived at by reading the requirements in s 53 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) (that an application “must” be made in writing within six months …) with the s 55 of the PPIP Act right to apply to the Tribunal for a review of conduct the subject of the application under s 53.
Contrary to the Tribunal’s conclusion of no jurisdiction is, however, s 55(3) of PPIP Act which shows that rather than hinge the Tribunal’s jurisdiction on whether the person exercised their right to an internal review, the Legislature’s real intention was to authorise the Tribunal to cure non-compliance with s 53 and impose on it a duty to decide what the correct and preferable conduct is.
In this blog post:
The legislative provisions that are relevant to the construction of s 55 of the PPIP Act are set out.
S 55 is construed according to the ordinary meaning of its words.
The Legislature’s real intention is revealed, and
Arguments against the construction are considered and rejected.
Construction of s 55
Context: legislative provisions
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”.
Information protection principles (IPPs): The IPPs in sections 8 -19 of the Act are “prohibitions or restrictions upon the conduct of each public sector agency to which the Act applies”: Director General, Department of Education and Training v MT [2006] NSWCA 270 (29 September 2006), [26].
S 21(1), PPIP Act: “A public sector agency must not do any thing, or engage in any practice, that contravenes an information protection principle applying to the agency”.
Part 5 of the PPIP Act “applies to the following conduct” – the contravention by a public sector agency of an information protection principle or privacy code of practice that applies to the agency (s 52(1)).
“Section 53 (Internal reviews) of the Administrative Decisions Review Act 1997 does not apply to or in respect of conduct to which this Part applies” (s 52(4)).
S 53, PPIP Act:
A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct” (s 53(1));
The “review is to be undertaken by the public sector agency concerned” (53(2));
An application for such a review must: be in writing, be addressed to the public sector agency concerned, specify an address in Australia, be lodged within 6 months (or such later date as the agency may allow), and, comply with requirements prescribed by the regulations (s 53(3));
An individual employed by the agency must deal with the application (except as provided by section 54 (3)). As far as practicable that individual must not have been substantially involved in the conduct, must be an employee or officer of the agency, and, must be suitably qualified to deal with the matters raised by the application (s 53(4));
In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by the applicant and the Privacy Commissioner (s 53(5));
“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” (s 53(6));
Following the completion of the review, the public sector may do one or more of the following: take no further action, apologise, take remedial action (eg pay compensation (subject to s 53(7A)), provide an undertaking that the conduct will not occur again, or implement administrative measures (s 53(7));
As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of: the findings of the review (and the reasons for those findings), and the action proposed to be taken by the agency (and the reasons for taking that action), and the right of the person to have those findings, and the agency’s proposed action, administratively reviewed by the Tribunal. (s 53(8)).
S 55(1), PPIP Act: “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 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 55(1A) …
S 55(2): “On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make” an order requiring the public sector agency to: pay to the applicant damages (subject to subsections (4) and (4A)); refrain from contravening an IPP or privacy code of practice; perform an IPP or privacy code of practice; correct personal information that has been disclosed; take specified steps to remedy any loss or damage; and, not disclose personal information contained in a public register.
S 55(3): “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” (ADR Act).
S 55(4), (4A), (5), (6), (7): …
ADR Act powers
The Tribunal’s powers under Division 3 of Part 3 of Chapter 3 of the ADR Act that “Nothing” in s 55 of the PPIP Act limits include:
- S 63(1): “In determining an application for an administrative review … the Tribunal is to decide what the correct and preferable decision [conduct] is having regard to the material then before it …”;
- S 63(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 [engaged in the conduct]; and,
- S 65(1): “At any stage of proceedings … the Tribunal may remit the decision [conduct] to the administrator who made it [engaged in it] for reconsideration of the decision [conduct] by the administrator”.
(In the ADR Act a reference to an administrator making an administratively reviewable decision includes a reference to an administrator engaging in administratively reviewable conduct. “The jurisdiction conferred on the Tribunal by section 55 of the Privacy and Personal Information Protection Act 1998 is an example of administrative review jurisdiction of the Tribunal over conduct” (s 7).)
Ordinary meaning
“In assigning legal meaning to the words of a provision, the court starts with consideration of the ordinary and grammatical meaning of the words taking into account both context and legislative purpose”.[1]
The ordinary and grammatical meaning of the words, “Nothing in this section limits …”, when considered in the context of the whole of s 55 and the PPIP Act’s purpose, is that the s 55(1) right to apply for a review “of the conduct that was the subject of the application under section 53” does not limit the Tribunal’s powers under the ADR Act.
When the Tribunal’s powers under the ADR Act that s 55(3) preserves are considered then the Legislature’s real intention is revealed.
Legislature’s intention
The Legislature’s real intention, was, it appears, to impose on the Tribunal a duty to decide what the correct and preferable conduct is, and, authorise the Tribunal to cure non-compliance with s 53 (whether the non-compliance is on the person’s or the agency’s part).
Duty imposed
S 63(1) says “the Tribunal is to decide”. “The phrase ‘is to’ … should be read as an imperative … as words of obligation”[2].
Power to cure
The Tribunal can allow late applications and remit conduct for reconsideration, which, in effect, reinstates s 53(3)’s requirements that the person apply in writing within six months “(or such later date as the agency may allow)”, giving an address in Australia.
The power to allow late applications is given by s 63(2) of the ADR Act, which says the Tribunal may exercise the functions conferred under “any relevant legislation” on the agency concerned.
(In the ADR Act function includes a power, authority or duty, and exercise a function includes perform a duty (s 4). In the PPIP Act “exercise a function includes perform a duty” (s 3).)
The agencies power under s 53(3) of the PPIP Act to allow applications at a date later than six months is a provision of a relevant legislation. S 63(2) of the ADR Act authorises the Tribunal to exercise that power.
The Tribunal’s power to remit is in s 65(1) of the ADR Act, which says, at “any stage of proceedings to determine an application for an administrative review … the Tribunal may remit the decision [conduct] to the administrator who made it for reconsideration of the decision [conduct] by the administrator.
(As noted earlier, a reference to a decision is a reference to conduct.)
Objects of ADR Act promoted
A legislative intention to impose on the Tribunal a duty-to-decide and the power to cure non-compliance with s 53 promotes (and is wholly consistent with) the objects of the ADR Act, which include “to foster an atmosphere in which administrative review by the Tribunal is viewed positively as a means of enhancing the delivery of services and programs”, and, to “promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales” (s 3(c) and (d)).
Whereas the Tribunal’s conclusion, that it must arbitrarily throw out the applications of persons who make procedural mistakes, defeats the objects of the ADR Act utterly.
Arguments against
Arguments could, of course, be made against a construction of s 55 that says the s 55(1) right-to-apply does not limit the Tribunal’s ADR Act powers. They do not promote the PPIP Act’s purpose and should not be preferred.
“In the interpretation of a provision of an Act … a construction that would promote the purpose or object underlying the Act … shall be preferred to a construction that would not promote that purpose or object” (Interpretation Act 1987 (NSW), s 33).
Ordinary meaning
An argument could be made that, because s 55(3) is positioned between sub-sections of s 55 that concern the Tribunal’s jurisdiction to make orders, s 55(3) only applies when the Tribunal is at the order-making stage of a proceeding. That argument, which involves departing from the ordinary meaning of s 55(3)’s words, should be rejected.
High Courts have said: “a court will not construe a provision in a way that departs from its natural and ordinary meaning unless it is plain that Parliament intended it to have some different meaning”[3]; and, “In an exceptional case the common law allows a court to depart from grammatical rules and to give an unusual or strained meaning to statutory words where their ordinary meaning and grammatical construction would contradict the apparent purpose of the enactment”[4].
Applying the above
It is not plain that Parliament intended the words “Nothing in this section limits any other powers that the Tribunal has …” to mean ‘Nothing in subsections (2) or (4) limits any other powers that the Tribunal has …’, and, the ordinary meaning of “Nothing in this section limits …” does not contradict the purpose of the PPIP Act.
There is, therefore, no basis upon which the ordinary meaning of the words “Nothing in this section limits” can be departed from.
Consistency and fairness
Consistency
The High Court’s opinion, that the “context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”[5] further supports that s 55(3)’s words should be given their ordinary meaning.
The discerned legislative intentions to impose on the Tribunal a duty-to-decide and authorise the Tribunal to cure non-compliance with s 53 of the PPIP Act are consistent with:
- Provisions of the ADR Act that authorise the Tribunal to deal with an application from a person who was entitled to apply for an internal review (under another Act) but did not (s 55, ADR Act);
- The legislative intention disclosed in s 53 that an agency undertake an internal review of its conduct; and
- The requirement that an inquisitorial Tribunal (which the Tribunal is[6]), is not limited by the case articulated or advanced by a party.[7]
Fairness
It is fair that a person’s procedural mistakes, which can be easily cured, do not defeat the privacy rights that the PPIP Act provides, or deny the agency concerned the positive service delivery enhancing experience of an administrative review of its conduct by the Tribunal under the ADR Act.
Non-issue
An argument could, perhaps, be made that the Tribunal has no jurisdiction because the word ‘application’ in s 63(1) should be taken to mean a ‘valid application’ that an enabling legislation entitled the person to make.
That argument, however, misstates the issue. The issue is not whether the person’s application to the Tribunal was validly made. The issue is whether the Legislature intended that the s 55(1) right to apply for an administrative review “of the conduct that was the subject of the application under section 53” should limit “the powers that the Tribunal has under Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997”. S 55(3) indicates that the Legislature did not.
PPIP Act prevails
It could be argued that construing s 55(3) as preserving the Tribunal’s s 63 of the ADR Act duty would make s 55(3) of the PPIP Act inconsistent with s 9 of the ADR Act which says, “The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator …”
If s 55(3) of the PPIP Act was inconsistent with s 9 of the ADR Act (which is not agreed as each can operate in its own terms) then s 9, which is prior to s 55(3), “gives way”[8]; s 55(3) (the subsequent provision) amends s 9 (the earlier provision).[9]
Conclusion
The Tribunal’s conclusion that an application under s 53 of the PPIP Act is a precondition to the Tribunal’s jurisdiction (is a jurisdictional fact[10]) should be rejected.
It wasn’t arrived at after a process of construing s 53 and s 55 of the PPIP Act in the context of other relevant provisions of the PPIP and ADR Acts (including the Acts’ purposes or objects); it involves an unwarranted and unprincipled departure from the ordinary meaning of s 55’s words; it makes s 55 inconsistent with the ADR Act provisions that authorise the Tribunal to deal with applications from persons who did not exercise their internal review rights under other Acts before applying to the Tribunal, and, it unfairly allows procedural mistakes to defeat privacy rights, which, it is apparent, the Legislature did not intend.
[1] The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35 (16 October 2019), [124].
[2] Priest v West (In his capacity as Deputy State Coroner of Victoria) and Percy and Second Respondent [2012] VSCA 327 (20 December 2012), [151].
[3] Masson v Parsons [2019] HCA 21 (19 June 2019), [26].
[4] Momcilovic v The Queen [2011] HCA 34 (8 September 2011), [40].
[5] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 (28 April 1998), [69].
[6] See: Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 (30 July 2020), [30]; University of New South Wales v PC (GD) [2008] NSWADTAP 26 (24 April 2008), [50].
[7] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 (16 September 2004), [58].
[8] China Ocean Shipping Co v South Australia [1979] HCA 57 (22 November 1979), Murphy J.,[10].
[9] Bropho v Western Australia [1990] HCA 24 (20 June 1990) Mason C.J.,[17].
[10] A “jurisdictional fact” is a criteria that, when satisfied, enlivens the exercise of a statutory power. Whether something is a jurisdictional fact is ascertained by a process of construction having regard to the full statutory context and to the object that the legislation seeks to achieve. The question is whether the legislature intended that the presence or absence of the factual condition should invalidate an attempted exercise of power”: Chase Oyster Bar v Hamo Industries [2010] NSWCA 190 (24 September 2010), [163-166].
